
    Edward H. Mowbray, Respondent, v. Richard Dieckman, Appellant, Impleaded with Hugh M. Funston.
    
      Specific performance—a complaint may demand both specific performance and dam-. ages and either may be awarded—the holder of the legal title, although hawing no , ' beneficial interest, is a necessary pa/rty.
    
    In an action brought to enforce the specific performance of a contract for the sale of land, the plaintiff may demand specific performance, or,, if that cannot be decreed, he may demand damages, or he may ask for both.
    He may he denied specific relief and may be awarded damages.
    The owner of the legal title is a necessary party under section 447 of the Code of Civil Procedure, and the-fact that he merely holds the title for the- benefit of anothe;.' does' not affect the necessity for his being made a party.
    Appeal by the defendant, Richard Dieckman,' from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10 th day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the plaintiff’s complaint.
    The prayer for relief in the complaint in this action was as follows:
    “ Wherefore, the plaintiff demands' judgment,
    “ I. That; the defendants be decreed to transfer and convey, free from all incumbrances, except as aforesaid, by a proper warranty deed, containing full covenants, duly executed- and acknowledged, to convey and assure to the grantee an absolute fee of said premises.
    “II. If the court should be unable to decree and express specific performance of said agreement, that the plaintiff have and. recover from the defendant Hugh M. Funston, the sum of $1,265', value of damages for non-performance of said agreement.
    “ III. That the plaintiff have other and further or different relief, .as may be just and equitable, together with costs of this action.”
    ' The demurrer interposed alleged, first, that the' complaint, upon the face thereof, did not state facts sufficient to constitute a cause of action against the defendant Dieckman; second, that it appeared upon the face of the complaint that causes of action had been improperly united, one being a claim to recover real property and the other damages .for breach of contract and both not affecting all the parties.
    
      
      Charles M. Stafford, for the appellant.
    
      H. H. Snedeker, for the respondent.
   Per Curiam:

The appeal in this case is without merit, and upon the law does not present a debatable question. It is well settled that in an action for specific performance, the specific relief may be denied and an award of damages may be made. (Haffey v. Lynch, 143 N. Y. 241 .O'Beirne v. Bullis, 2 App. Div. 545.)

The pleader had the clear right to ask for specific' performance, or, in the event that it could not be decreed,, to ask for an award of damages, or to ask for both specific performance and damages. ( Witherbee v. Meyer, 84 Hun, 146.)

Dieckman was a necessary party, as he held the legal title. The complaint alleged that he was without interest in fact, but that he held the legal title for the benefit of the other defendant who alone was beneficially interested. In order to obtain specific performance it was absolutely necessary that Dieckman be made a party, in order that the proper conveyance might be máde. In section 447, Code of Civil Procedure, is found the authority for making him a party, and the fact that he. might. not be affected by the judgment, if specific performance was denied and damages awarded, in no way affects the question of his proper joinder as a party defendant in the action.

The judgment appealed from should be affirmed, with costs, with leave to the defendant- Dieckman to answer within twenty days after the service of a copy of the judgment, on payment of costs.-,.

All concurred. - ' .

Judgment affirmed, with costs, with leave to appellant to answer in twenty days on payment of costs.  