The plaintiffs’ intestate, one of several obligors and mortgagors who were jointly and severally bound by the express terms of their obligation, having made payments in reduction of the mortgage debt, this action is brought against all th^ other obligors, except one who has been, released, to compel contribution.
The action is one of equitable cognizance, the enforcement of contribution in cases of this nature being a very important and beneficial exercise of equity jurisdicton. (Story’s Eq. Jur., §§ 483, 484, 485, and cases cited in notes.) All the persons liable are properly made parties in order that their several interests may be adjusted and the amounts for which they are respectively liable may be ascertained. Besides, although the liability of each defendant for his quota is several and may be enforced in an action at law (Cowell v. Edward, 2 B. & P., 268), yet where the co-obligors are numerous they may be joined in one action in equity to prevent multiplicity 'of suits. (Craythorne v. Swinburne, 14 Ves., 160; 3 Pomeroy on Eq. Jur., § 1418 and note [1], and cases there cited.)
For the purpose of establishing a right to compel contribution, it is not necessary for the plaintiff to show that he paid at the express request of the defendants, or either of them, provided the right is made out in other respects. If the defendants were equally liable for the debt with himself, contribution will be compelled upon the principle that equality is equity (Aspinwall v. Sacchi, 57 N. Y., 331), and no request from them is necessary, or if necessary a request will be implied.
The plaintiffs have brought themselves fully within these rules. Their testator paid certain installments on the joint bond and mort*199gage when they became due, and also taxes upon the premises, and the claim is that each of the defendants shall be compelled to contribute his share of the moneys so paid.
It is ui’ged by way of defense that the release of Mr. Perkins, one of the obligors, discharged the othei’S. But the contract or obligation to conti’ibute being several, one of several co-obligors may be released without discharging the others. (Pars. on Cont. [6th ed.], 34, 35.)
It is suggested, too, by the defendants’ counsel that the plaintiffs’ intestate by purehasing the mortgaged property at the foreclosui’e sale became a trustee for his co-obligors. We do not think it necessary to consider that question on this appeal. If the intestate became the trastee of his co-obligors, the bare fact is no defense to the claim for contribution in respect to payments made by him before he became trastee. It may be that' he or his representatives have received moneys in the use of the property, or as a profit in the purchase in which his co-obligors are entitled to share; but those .are questions that do not appear to have been gone into at the trial.
It is also contended for the defense that the action is barred by the statute of limitations. That depends on whether the six-year or the ten-year limitation applies. We have seen that an action at-law would lie against each of the obligox-s separately to recover his quota, and of coui’se such an action would be within the six-year statute. In general where there is a legal and an equitable remedy in respect to the same subject Inatter the latter is under the control of the saxpe statute bar as the foi’mer. (Borst v. Corey, 15 N. Y., 505; Rundle v. Allison, 34 id., 180.) But the statute bar applicable to equitable x-emedies will be applied whei’e the legal remedy is impex-fect (Rundle v. Allison, supra), or where the xdght sought to be enforced by the equitable x-emedy is not a mere incident of the right attainable at law, as was the ease in Borst v. Corey (supra), but is distinct fx’om and independent thereof and not within the cognizance of a coux-t of law. An instance of the latter class of actions is Scott v. Stebbins (27 Hun, 335; affirmed by the Court of Appeals, 91 N. Y., 605). In the present case it was necessary for the plaintiffs to x’esort to a court of equity, where alone all the parties could be brought into one action for the purpose of adjusting their *200respective interests and ascertaining the amount for which they are severally liable, and compelling contribution from each by one decree, tbns avoiding a multiplicity of suits. And if, as is suggested by tire defendants’ counsel, tbe plaintiffs’ intestate became a trustee for his co-obligors and an accounting is necessary to determine tbe equities of tbe respective parties, that circumstance of itself makes the case one of equitable cognizance exclusively. As tbe action was brought within ten years after the cause of action accrued it is not barred.
We think the judgment dismissing the complaint should be reversed and a new trial ordered, costs to abide event.
Present — Smith, P. J., ITardin and Barker, JJ.Judgment reversed and a new trial ordered, costs to abide event.