By the Court.
Unless in an action for the recovery of money only, brought upon a contract to purchase and take a conveyance of real estate, and brought to recover damages specially stated in the complaint, but not to recover any part of the purchase-money, a plaintiff may have a judgment for specific performance, although he fails to establish a right to recover any part of the moneys for which judgment is prayed; the judgment appealed from in this case must be affirmed.
The Code provides that certain actions shall be tried by a jury, and that all other actions are triable by the court. (§§253 and 254.) Those now required to be tried by a jury, were formerly known as actions at law; and those triable by the court, as equity suits.
Section 253 declares that an issue of fact in an action for the recovery of money only, . . . must be tried by a jury, &c.
What is the test, by which it is to be determined whether an action is for the recovery of money only ?
When the action arises on contract, and is for the recovery of money only, the summons must state that the plaintiff will take judgment for a sum specified therein. The summons in this case states that judgment will be taken for a sum named therein. The complaint states a contract between the parties by which the plaintiffs were to sell, and the defendant to purchase, an unencumbered leasehold property for the sum of $7,500; payment of $25 of the purchase-money; that defendant took possession ; a tender of an assignment of the lease, and defendant’s refusal to accept it or to perform the agreement on [453]*453his part; a sale of other property by.the plaintiffs, in consequence of the making of this contract, at a loss of $300, and of still other property at a loss of $500 ; a loss of the' use of other property to the amount of $200; and, generally, that the plaintiffs “ sustained damages in consequence of the said defendant refusing to perform his said- contract, to the sum of $5,000 over and above the use and occupation of the building,” alleged to be worth $150. Wherefore the plaintiffs “demand judgment against the defendant for the sum of $5,150 damages, besides the costs and disbursements of the action.”
The Code (§ 142) requires that a complaint contain “ a demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.’ ’
The summons shows the action to be one on contract, and for the recovery of money only. The complaint states a cause of action arising on contract, and demands no relief, except the recovery of money. The sum demanded is only $5,150, while the amount of purchase-money remaining unpaid is $7,475. Of the $5,150 claimed, $150 is for the use by the defendant of the leasehold premises.
If, therefore, the plaintiffs could recover for such causes of damages as they specify, a recovery for them only would leave them without a verdict for any part of the purchase-money; and payment by the defendant of the sum recovered would not confer on him any right to an assignment of the lease; for the reason that it would not include any part of the purchase-money. And it was evidently the view and intent of the pleader who drew the complaint, that the recovery of damages, of the nature and on the grounds therein stated, would leave the plaintiffs the owners of the lease, and freed from obligation to transfer it to the defendant.
This view and intent are manifest from the fact that there is no prayer for judgment for the unpaid purchase-money. Judgment is prayed for $5,150; and the claims composing that sum do not include any part of the purchase-money; the part of it unpaid being $7,450, or $2,300 more than the amount sought to be recovered. The allegations of the complaint, therefore, not only do not attempt to make a case for the re- . covery of the purchase-money, but it could not be recovered, [454]*454even if the allegations of the complaint made a case for it, without amending the summons and prayer for relief, in respect to the sum démanded. These plaintiffs no more seek, on the case made) a recovery of the purchase-money, than would a vendor of personal property deliverable at a future day, who should sue, alleging a breach of the purchaser’s contract in his refusal to take and pay, and claim as damages the difference between the contract price and the market value, on the day the contract should have been performed.
The action was noticed for trial as a jury cause, and was tried by the court only because a jury trial was waived. Had it been tried by a jury, the verdict, if for the plaintiffs, would have been for money only, and for such sum as upon the evidence and under the law, as charged by the court, the jury thought the damages amounted' to. The jury have in such a case an absolute right to render a general verdict, though they may be required to “ find upon particular questions of fact to be stated in wilting.” (Code, § 261.) The clerk must enter judgment in conformity with the verdict (§ 264), unless the case be reserved for argument or further consideration. •
The only relief the defendant can have, if the verdict be against him, is a new trial, if there were errors in the trial; if he has no right to a new trial, judgment follows upon the verdict and in conformity with it, as a matter of course. (§§ 264, 265.) It is, of course, conceded, that if the defendant alleged and proved facts, entitling himself to relief on equitable principles against the plaintiffs’ strictly legal rights, it would be granted to him, in the judgment to be rendered. But this fact does not aid a solution of the question, what is the case made by the complaint? and what is the extent of the relief grantahle to the plaintiffs thereupon ?
In this action, if the plaintiffs recover $50 or more, they recover costs-as a matter of course (§ 304, subd. 4), and if they fail to recover any thing, the defendant recovers costs (§ 305); whereas, if it could be treated as ah action in which equitable relief might be-given, the costs of it would be in the discretion of the court. (§ 306.)
A plaintiff on a given state of facts may not be able to recover at law (or as legal relief to which he is entitled), either the purchase-money, or any damages for a refusal to take a [455]*455deed, and yet may have a right to a decree for a specific performance. If he had not the title when the action was brought, or if the contract was void'by the Statute of Frauds, he could not' at law recover the purchase-money, even though there was part performance of the contract; while in case of part performance, if he- could make a good title at the trial, he might have a decree for a specific performance. (3 Rev. Stat., 5 ed., 221, § 10; Lowry a. Tew, 3 Barb. Ch., 407; 4 Comst., 403.)
The plaintiffs having made a case for the recovery of legal relief only, and having brought their action to obtain legal relief only—viz., to recover money only—and having failed to .establish a right to any part of the relief prayed, they are not at liberty to say, on an appeal from the judgment, that the facts found entitle them to equitable relief, and that the judgment should be reversed, because equitable relief was not granted. (Cole a. Reynolds, 18 N. Y., 74; Wood a. Wood, 26 Barb., 356 ; Stevenson a. Buxton, 8 Abbotts’ Pr., 414; N. Y. Ice Co. a. Northwestern Ins. Co., 23 N. Y.,
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By the Court.
Unless in an action for the recovery of money only, brought upon a contract to purchase and take a conveyance of real estate, and brought to recover damages specially stated in the complaint, but not to recover any part of the purchase-money, a plaintiff may have a judgment for specific performance, although he fails to establish a right to recover any part of the moneys for which judgment is prayed; the judgment appealed from in this case must be affirmed.
The Code provides that certain actions shall be tried by a jury, and that all other actions are triable by the court. (§§253 and 254.) Those now required to be tried by a jury, were formerly known as actions at law; and those triable by the court, as equity suits.
Section 253 declares that an issue of fact in an action for the recovery of money only, . . . must be tried by a jury, &c.
What is the test, by which it is to be determined whether an action is for the recovery of money only ?
When the action arises on contract, and is for the recovery of money only, the summons must state that the plaintiff will take judgment for a sum specified therein. The summons in this case states that judgment will be taken for a sum named therein. The complaint states a contract between the parties by which the plaintiffs were to sell, and the defendant to purchase, an unencumbered leasehold property for the sum of $7,500; payment of $25 of the purchase-money; that defendant took possession ; a tender of an assignment of the lease, and defendant’s refusal to accept it or to perform the agreement on [453]*453his part; a sale of other property by.the plaintiffs, in consequence of the making of this contract, at a loss of $300, and of still other property at a loss of $500 ; a loss of the' use of other property to the amount of $200; and, generally, that the plaintiffs “ sustained damages in consequence of the said defendant refusing to perform his said- contract, to the sum of $5,000 over and above the use and occupation of the building,” alleged to be worth $150. Wherefore the plaintiffs “demand judgment against the defendant for the sum of $5,150 damages, besides the costs and disbursements of the action.”
The Code (§ 142) requires that a complaint contain “ a demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.’ ’
The summons shows the action to be one on contract, and for the recovery of money only. The complaint states a cause of action arising on contract, and demands no relief, except the recovery of money. The sum demanded is only $5,150, while the amount of purchase-money remaining unpaid is $7,475. Of the $5,150 claimed, $150 is for the use by the defendant of the leasehold premises.
If, therefore, the plaintiffs could recover for such causes of damages as they specify, a recovery for them only would leave them without a verdict for any part of the purchase-money; and payment by the defendant of the sum recovered would not confer on him any right to an assignment of the lease; for the reason that it would not include any part of the purchase-money. And it was evidently the view and intent of the pleader who drew the complaint, that the recovery of damages, of the nature and on the grounds therein stated, would leave the plaintiffs the owners of the lease, and freed from obligation to transfer it to the defendant.
This view and intent are manifest from the fact that there is no prayer for judgment for the unpaid purchase-money. Judgment is prayed for $5,150; and the claims composing that sum do not include any part of the purchase-money; the part of it unpaid being $7,450, or $2,300 more than the amount sought to be recovered. The allegations of the complaint, therefore, not only do not attempt to make a case for the re- . covery of the purchase-money, but it could not be recovered, [454]*454even if the allegations of the complaint made a case for it, without amending the summons and prayer for relief, in respect to the sum démanded. These plaintiffs no more seek, on the case made) a recovery of the purchase-money, than would a vendor of personal property deliverable at a future day, who should sue, alleging a breach of the purchaser’s contract in his refusal to take and pay, and claim as damages the difference between the contract price and the market value, on the day the contract should have been performed.
The action was noticed for trial as a jury cause, and was tried by the court only because a jury trial was waived. Had it been tried by a jury, the verdict, if for the plaintiffs, would have been for money only, and for such sum as upon the evidence and under the law, as charged by the court, the jury thought the damages amounted' to. The jury have in such a case an absolute right to render a general verdict, though they may be required to “ find upon particular questions of fact to be stated in wilting.” (Code, § 261.) The clerk must enter judgment in conformity with the verdict (§ 264), unless the case be reserved for argument or further consideration. •
The only relief the defendant can have, if the verdict be against him, is a new trial, if there were errors in the trial; if he has no right to a new trial, judgment follows upon the verdict and in conformity with it, as a matter of course. (§§ 264, 265.) It is, of course, conceded, that if the defendant alleged and proved facts, entitling himself to relief on equitable principles against the plaintiffs’ strictly legal rights, it would be granted to him, in the judgment to be rendered. But this fact does not aid a solution of the question, what is the case made by the complaint? and what is the extent of the relief grantahle to the plaintiffs thereupon ?
In this action, if the plaintiffs recover $50 or more, they recover costs-as a matter of course (§ 304, subd. 4), and if they fail to recover any thing, the defendant recovers costs (§ 305); whereas, if it could be treated as ah action in which equitable relief might be-given, the costs of it would be in the discretion of the court. (§ 306.)
A plaintiff on a given state of facts may not be able to recover at law (or as legal relief to which he is entitled), either the purchase-money, or any damages for a refusal to take a [455]*455deed, and yet may have a right to a decree for a specific performance. If he had not the title when the action was brought, or if the contract was void'by the Statute of Frauds, he could not' at law recover the purchase-money, even though there was part performance of the contract; while in case of part performance, if he- could make a good title at the trial, he might have a decree for a specific performance. (3 Rev. Stat., 5 ed., 221, § 10; Lowry a. Tew, 3 Barb. Ch., 407; 4 Comst., 403.)
The plaintiffs having made a case for the recovery of legal relief only, and having brought their action to obtain legal relief only—viz., to recover money only—and having failed to .establish a right to any part of the relief prayed, they are not at liberty to say, on an appeal from the judgment, that the facts found entitle them to equitable relief, and that the judgment should be reversed, because equitable relief was not granted. (Cole a. Reynolds, 18 N. Y., 74; Wood a. Wood, 26 Barb., 356 ; Stevenson a. Buxton, 8 Abbotts’ Pr., 414; N. Y. Ice Co. a. Northwestern Ins. Co., 23 N. Y., 357, 360.)
No case has been cited, and none has fallen under my observation, where, in an action on contract brought to recover money only, and where the plaintiff failed to establish a right to recover any thing on legal grounds, equitable relief has been granted to him upon the trial.
Section 275 does not aid the plaintiffs. Where an action is brought to obtain legal relief only, and that relief is a recovery of money only, the granting of equitable relief is not consistent with the case made by the complaint.
To enable the court to grant equitable relief, and in order that the granting of it may be consistent with the case made by the complaint, the action must be brought to obtain such relief, wholly or in part; and whether it is so brought must be determined by the tests provided by the Code.
In a suit brought to obtain equitable as well as legal relief, it is consistent with the case made by the complaint to grant legal relief, though equitable relief be denied, where enough of the allegations contained in the complaint and embraced within the issue, to entitle the plaintiff to legal relief, are established at the trial. (Marquat a. Marquat, 2 Kern., 336; Bidwell a. The Astor Mut. Ins. Co., 16 N. Y., 263; The N. Y. Ice Co. [456]*456a. The Northwestern Ins. Co., 23 N. Y., 357; See a. Partridge, 2 Duer, 463.)
Actions to obtain legal relief only, and actions to obtain equitable relief, or both equitable and legal relief, are contra-distinguished throughout the Code. The summons may be, and in some cases must be different; the former must be tried by a jury; and without some special order, the latter cannot be tried by a jury. In the former, the recovery of costs by the prevailing party is a matter of strict right; in the latter, the court may impose them upon either party, as it deems justice requires.
The present case, viewed in the light of every test contained in the Code, is an action for the recovery of money only, or for legal relief only; on the facts found, no action at law would lie, and the plaintiff would not be entitled to recover any thing.
The premises were encumbered when this suit was brought, and continued to be at the time of the trial. The defendant, by the contract, was to have “ the lease and improvements, free and clear of all encumbrancesthe plaintiffs never tendered such a title, and whatever title they had was subject to encumbrances. If the cause had been tried before a jury, it would have been the duty of the court to nonsuit the plaintiffs.
The judgment should be affirmed.
Present, Bosworth, Ch. J., Robertson and Barbour, JJ.