The opinion of the court was delivered by
SCUDDER, J.Two questions have been discussed by the counsel on the argument of this appeal, and they were the only points considered in the opinion of the vice-chancellor, who advised the holding of the injunction : first, does the bill show such a case as will justify a court of equity in withdrawing the litigation from a court of law where it was commenced ? second, if it does not, does the answer make up for the want of equity in the bill, and can it be used for that purpose? Upon the first point there is little to be said in addition to what was said in the opinion of the court below, which held that the case made by the bill disclosed an equitable element which would give that court exclusive jurisdiction; that the account was not so complicated that it could not be tried at- nisi prius with any certainty that an accurate result would be reached, citing, as authorities for this conclusion, Kerr on Inj. 58 and Seymour v. Long Dock Co., 5 C. E. Gr. 396, 407. The cau-°e stated in the bill of complaint for changing the *571forum is the complex nature of the account. If the facts in the bill sustained this charge, there would be no difficulty in the complainant’s right to hold the injunction, for, as it is said in 1 Story’s Eq. Jur. § 451, “ The whole machinery of courts of equity is better adapted to the purpose of an account in general, and, in many cases, independent of the searching power of discovery, and supposing a court of law to possess it, it would be impossible for the latter to do entire justice between the parties, for equitable rights and claims not cognizable in law are often involved in the contest.” It has also been held that the common law procedure act, included in our practice act, under which references are made in matters of account, has not taken from courts of equity the right to restrain actions involving complicated accounts where the accounts could be more completely taken in those courts. Croskey v. E. & A. S. Shipping Co., 1 Johns. & H. 108.
But conceding the widest authority which has been claimed for courts of equity to take cognizance in matters of account between parties, whether they be of a fiduciary character or otherwise, and the advantage they possess in the forms of procedure for doing complete justice, these courts have been careful not to interfere where there is concurrent jurisdiction in courts of law, and where the latter have first taken cognizance, unless a plain case be made in the bill. The authorities show that there are many cases in which a court of equity will entertain jurisdiction, in matters of account, in the first instance, where, if the party making the claim had proceeded at law, the court would not, if applied to for that purpose, withdraw the matter from legal jurisdiction. South Eastern R. R. Co. v. Brogded, 3 Macn. & G. 8; Sweeny v. Williams, 9 Stew. Eq. 627; 1 Pom. Eq. Jur. § 179.
In this case, on the showing made in the bill of complaint, the account is not complicated, but an ordinary account of debits for notes, goods &c., with credits allowed for payments made on account, as shown in the schedule to the plaintiff’s declaration in the action at law, in stating which the complainant charges they have omitted several items for which he is entitled to credit on a settlement. These additional items claimed by him in his bill are cash payments made by the complainant, with a few small charges *572for merchandise. Besides these there is the charge of $4,200 for two bonds and mortgages assigned to the defendants, made to offset a claim for like amount in their account against him for money paid him by A. & A. Duryea, of New York City, by their order; and the sum of $600 for his portion of the purchase-money of the land alleged to have been bought of Burk and the complainant by the defendants. As the account is thus stated in the bill of complaint there is no difficulty in trying it at law before a jury or by reference under the statute. The whole matter depends on the truth of their respective statements, which can be tried as well at law as in equity.
The second question argued is whether the answer cures the want of equity in the bill. Admitting, for the purpose of an examination of its particular contents, that this may be done, it is found that the answer denies and explains each item of the complainant’s statement of omitted items in their account. It also denies their liability for the purchase of the Lowrey mortgages, because of the fraud practiced by the complainant, Ely, and avers that they hold title to the mortgaged premises for him, and tender it to him on settlement of their account. The answer also avers that the' Burk property was purchased for the complainant, Ely, and that they do not owe him for any purchase-money therefor, and tender a conveyance to him of the property on payment of the balance of their account. The answer further shows that Ely has been in possession of both properties since their purchase at his request, and that he has acted in all respects as the owner thereof. It denies the complication of the accounts and the inability of a court of law to adequately state the same, and, in doing so, shows the falsity of the credits claimed by the complainant for the items set out in his bill, including the charges for $4,200 and $600 for the mortgages and the Burk farm. The bill therefore receives no help from the. answer in the matter of the alleged omitted items and the complex nature of the account. But it is said .that the answer discloses the facts that the defendants have the deed for the mortgaged premises and the Burk tract of land, and if they succeed in disproving the credits claimed by the complainant for the $4,200 and $600, he will be *573entitled to a conveyance of these properties to him, and therefore it is necessary for the court of equity to retain the bill and the injunction, to give a more complete and adequate remedy than can be given at law. But as the complainant states his case in the bill, he asks no such protection, for he does not seek a conveyance of the lands, but credit for the purchase-price. It is both informal and unjust to allow the complainant to abandon the case made by his bill, and to come, at the hearing or on motion to dissolve an injunction, for a new remedy upon a record framed with an aspect altogether different. Stevens v. Guppy, 3 Russ. 171, 185.
The complainant having failed to show in his bill of complaint a complicated account between him and the defendants, requiring the aid of a court of equity to settle the same, and the material facts on which he relied for the relief he has prayed for being positively and sufficiently denied by the answer made under oath, for the purpose of this motion to dissolve the injunction, the injunction should be dissolved and the case permitted to proceed at law, where cognizance of it was first obtained. From the view above taken, it will be observed that this case does not call for any expression of opinion on the question raised and discussed in the argument, whether the bill, being defective, can be helped by responsive statements made in the answer. The matters relied on in the answer to retain the injunction are outside the case made in the bill, and cannot be brought into it without changing its aspect. The order should be reversed and the injunction dissolved.
Decree unanimously reversed.