
    Shepard N. Edmonds, Appellant, v. Joseph W. Stern and Edward B. Marks, Respondents.
    
      Defense that the plaintiff has an adequate remedy at law — when demurrable.
    
    Where it is certain, from the facts alleged in a complaint and from the prayer for relief contained therein, that the plaintiff seeks, and can obtain, if anything, equitable relief, a defense that the plaintiff has an adequate remedy at law is demurrable.
    Where, from the facts alleged in the complaint, it is uncertain whether the plaintiff is entitled to legal or equitable relief, and the prayer for judgment asks for equitable relief, the defense that the plaintiff has an adequate remedy at law may properly be interposed.
    Such á defense is also proper where it is certain, upon the facts pleaded, and apart from the prayer for relief, that the plaintiff’s only remedy is at law.
    Appeal by the plaintiff, Shepard N. Edmonds, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term; overruling the plaintiff’s demurrer to one of several separate defenses contained in the defendants’ amended answer.
    
      Charles Goldzier, for the appellant.
    
      WilUam McArthwr, for the respondents.
   O’Brien, J.:

The action is one brought for the cancellation of certain contracts made between the parties under which the defendants obtained frqm the plaintiff, who was an author and composer of songs, the right to publish certain songs and secured a transfer of such songs under a stipulation to pay plaintiff a royalty for copies of them as they were sold.

It is alleged that the defendants had no intention of publishing the songs, but made the agreement merely for the purpose of preventing plaintiff’s competition with other composers; and the relief demanded is that the contracts be canceled and the defendants be compelled to reassign and return to the plaintiff the manuscripts, songs and music.

Among other defenses the defendants interposed the following separate defense:

“"X. That the plaintiff has an adequate remedy at law for and on account of each and all the matters set forth and alleged in the complaint herein.”

The plaintiff demurred to this defense as insufficient, and this appeal is from the judgment overruling that demurrer.

The question presented is not, so far as this court is concerned, a new one, it having been expressly passed upon in Golden v. Health Department (21 App. Div. 420). The Appellate Division of, the second department followed that case and held that it was controlling where the same question arose in Olivella v. N. Y. & H. R. R. Co. (51 App. Div. 612). The opinion of the Special Term in this latter case (Olivella v. N.Y. & H. R. R. Co., supra) will be found in 31 Miscellaneous Reports, 203, wherein it was held (head note), “ A separate defense, interposed in an action in equity, alleging only a pure conclusion of law, i. e.. that the plaintiff has an adequate remedy at law, i. e., consists of new matter ’ within the meaning of section 494 of the Code of Civil Procedure, and may properly be demurred to under that section upon the ground that it is insufficient in law upon the face thereof.” >

These cases are authority for the proposition which has been sustained by both departments, that to a complaint which is purely equitable in its nature and in which only equitable relief can-be afforded, a defense that the plaintiff has an adequate, remedy at law is insufficient and its insufficiency can be raised by demurrer. This in no way impairs the force and strength of the decisions, which hold that where there is doubt upon the allegations of the complaint as to whether the action is one at law or one in equity, this doubt is to be solved by the prayer for relief. (O'Brien v. Fitzgerald, 143 N. Y. 377 ; Bell v. Merrifield, 109 id. 202.)

True a defendant in case of doubt should not be left to the mercy of the plaintiff, and it would be entirely proper to interpose the defense that the plaintiff has an adequate remedy at law where from the allegations of the complaint itself it is uncertain as to what may be the final relief to which upon the facts the plaintiff is entitled. In other words, where from the facts alleged it is uncertain as to whether the plaintiff is entitled to legal or equitable relief,.

\ and the prayer for judgment asks for equitable relief, in such a case the defense that the plaintiff has an adequate remedy at law is proper. So, too, where it is certain upon the facts pleaded, and apart from the prayer for relief that the plaintiff has only a remedy • at law, there it is proper to interpose such a defense to enable the plaintiff to avail himself of that plea. But where, as here, upon an examination of the complaint it is certain from the facts alleged and the prayer for judgment that what the plaintiff seeks and what he is entitled to obtain, if anything, is equitable relief, then in such a case a defense that he has an adequate remedy at law cannot be interposed, because, as a defense, it is insufficient in law.

Our conclusion is that the demurrer was improperly overruled and that the judgment appealed from should accordingly be reversed, with costs, and the demurrer sustained, with costs, and with leave to the defendant to plead over upon payment of costs in this court and in the court below.

Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to plead over upon payment of costs in this court and in the court below.  