
    (55 Misc. Rep. 392.)
    KELSEY v. WALLS.
    (Supreme Court, Special Term, New York County.
    July, 1907.)
    Pleading—Complaint—Legal and Equitable Relief.
    Where averments of a complaint are consistent with a demand for damages without resort to equity to fix the amount, it is not open to demurrer, though equitable relief is also sought.
    [Ed. Noté.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 143, 440.]
    Action by Charles B. Kelsey against Charles H. Walls. Demurrer to complaint overruled.
    Rollins & Rollins, for plaintiff.
    Robert W. Crawford, for defendant.
   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, 98 N. Y. Supp. 468. The rule stated in Black v. Vanderbilt, 70 App. Div. 16, 74 N. Y. Supp. 1095, 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 20 days.  