Kelsey v. Walls

55 Misc. 392, 106 N.Y.S. 575

Opinion

Bischoff, J.

Treating the complaint as one which sets forth a trespass, merely, a cause of action at law is apparent; and, since the averments are all consistent with the demand for damages without resort to equity to fix the amount — as upon an accounting — the pleading is not open to demurrer, notwithstanding that equitable relief is also sought. Doyle v. Delaney, 112 App. Div. 856. The rule stated in Black v. Vanderbilt, 70 App. Div. 16, relied upon by the defendant, has no application to the present case, because of the distinction noted in Doyle v. Delaney, supra.

Demurrer overruled with costs, with leave to defendant to plead over, on payment of costs within twenty days.