
    Adolph Pape, Appellant, v. Pratt Institute, Respondent.
    Second Department,
    June 18,1908.
    Pleading — demurrer — right to equitable relief not determined.
    On demurrer to a complaint in equity for not stating a cause of action, the court cannot sustain the demurrer upon the ground that the facts do not justify the interposition of a court of equity, if, in fact, the complaint does state facts sufficient to constitute a cause of action.
    As under a complaint alleging in substance that the defendant maintains a bowling alley causing great noise whereby the enjoyment by the plaintiff of his premises is materially impaired and demanding a perpetual injunction, the plaintiff may prove facts which will entitle him to equitable relief, the court should not determine upon demurrer that equitable relief is not warranted.
    Appeal by the plaintiff, Adolph Pape, from an interlocutory judgment of the Supreme Oonrt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of February, 1908, upon the decision of the court, rendered after a trial at the Kings. County Special Term, sustaining the demurrer interposed by the defendant upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.
    
      Richard Krause, for the appellant.
    
      John T. Pratt, for the respondent.
   Woodward, J.:

The plaintiff alleges for a cause of action that the defendant is a domestic corporation; that the plaintiff is and since May 1, 1906, has been the owner and occupant of the dwelling house known as No. 229 Eyerson street, borough of Brooklyn, city of New York; that the defendant is and since May, 1906, has been maintaining, bowling alleys in the premises known as Nos. 208 and 210 Grand avenue, borough of Brooklyn, city of New York; that the bowling is being and since May, 1906, has been done in said bowling alleys with the permission of the defendant; that the bowling is and since May, 1906, has been causing much noise; that the said noise is and since May, 1906, has been materially impairing the enjoyment by the plaintiff of the said dwelling house. The complaint, because of these facts, asks for judgment against the defendant perpetually enjoining it from maintaining the said bowling alleys and' permitting bowling therein, together with the costs of this action.

The defendant demurs to this complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and the learned court at Special Term has found as a matter of law, not that the complaint is deficient in its statement of facts to constitute a cause of action, but that the complaint does not state facts sufficient to constitute a cause of action to justify the interposition of a court of equity,” which is a question not before the court on a demurrer. A good deal of confusion seems to have grown up on this question and yet the provisions of the Code of Civil Procedure are plain, and the undoubted rule is that Upon demurrer a complaint is good if ■ it states a cause of action without regard to the question of whether a court of equity, in the emrsm ef a so'tód discretion, would be justified in granting the relief demanded. In other words, the office of a demurrer is not to determine the question of equitable cognizance, but a question of law, and that question is, does the complaint state facts sufficient to constitute a cause of action ? “ In such a case,” say the court in Kain v. Larkin (141 N. Y. 144, 150), “ the demurrer cannot be sustained unless it appears, admitting all the facts alleged, that no cause of action whatever is stated. The demurrer cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentativel/y averred. The pleading may be deficient in technical language or in logical statement, but as against a demurrer * * * the pleading will be deemed to allege whatever can be implied from its statements by fair and reasonable intendment.” Tried by this test, is there any doubt that the pleading in this case states facts sufficient to constitute a cause of action ? There is an allegation of the maintaining of a bowling alley; that it is conducted with great noise; that it materially impairs the enjoyment by the plaintiff of his premises and a demand of judgment enjoining the continuance of the bowling alleys. It may be, of course, as the learned justice in his opinion says, that a bowling alley is not a nuisance per se, but the allegations of this complaint — the ultimate facts stated — open the way to the introduction of evidence to show that this bowling alley is so located and conducted as to be a nuisance, and if such should prove to be the case the plaintiff would be entitled to relief. It is not necessary to state all of the intermediate facts in order to state a good cause of action — one that will stand a demurrer; these are matters of evidence within the limits of the ultimate facts alleged, and a plaintiff should not be denied the right to establish his facts tending to show the material injury complained of because the court, reading the complaint, may not be able to determine the relief to which he might be entitled.

Section 481 of the Code of Civil Procedure provides that the complaint, aside from the formal parts, shall contain a “ plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” and a “demand of the judgment to which the plaintiff supposes himself entitled,” and we are of the opinion that the authorities will be examined in vain for a case in which it has been held that where the facts stated constituted a. cause of action in harmony with the demand for judgment, the court on demurrer could determine whether the case was one demanding the interposition of a court of equity. Section 3339 of the Code of Civil Procedure declares that there “is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.” This being true, it follows, logically', that a demurrer is not to test the question of whether there is ground for equitable interference, but whether a cause of action of any kind is stated. Section 518 of the Code of Civil Procedure provides that “ this chapter prescribes - the form of pleadings in an action,” etc., and the next section provides that the allegations of the pleadings must be liberally construed, and when ihe complaint has made a “ plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” and has made a “ demand of the judgment to which the plaintiff supposes himself entitled,” the defendant must answer or demur to the complaint. (Code Civ. Proc. § 487.) When the demurrer is based on the proposition that the complaint does not state facts sufficient to constitute a cause of action (Code Civ. Proc. § 488) it is not for the court to determine whether the ultimate facts stated, devoid of details, entitle the plaintiff to the cognizance of a court of equity, but whether the facts stated do constitute a cause of action. Of course, if the plaintiff states facts which would entitle him to a judgment of ejectment, and asks for an injunction, he has not stated a cause of action, in contemplation of law, for it is provided by section 1207 of the Code of Civil Procedure that where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. Being entitled by his facts to ejectment, and demanding equitable relief, he has not shown himself entitled to the latter, and as the judgment could not be more favorable than he has asked, on demurrer he is, of course, out of court. But where the action is one appealing to the equitable powers of the court, and the demand for judgment is consistent with the facts pleaded, we find no case in which a demurrer has been sustained. A failure to demand the precise relief to which lie is entitled is not a ground for demurrer (Cody v. First National Bank, 63 App. Div. 199, 202, and authority there cited), and where the plaintiff has a consistent complaint of an equitable character and the facts stated are sufficient to constitute a cause of action, there is no ground for sustaining a demurrer simply because the court at Special Term does not think the case is one calling for equitable interposition.

Swart v. Boughton (35 Hun, 281) is not contrary to the views here expressed. In that case it was held that “ where all of the allegations of the complaint are made for the purpose of procuring equitable relief and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed.” (P. 287.) That is not this case. Here there are facts showing a wrong committed against the plaintiff by the maintenance of a bowling alley. The complaint is based on equitable grounds and asks for equitable relief, and the court has not determined the only question presented, whether the facts were sufficient to constitute a cause of action, but has found that the facts are not stated in sufficient detail to entitle the plaintiff to the interposition of a court of equity, though under the evidence which might properly be adduced under the complaint, the plaintiff might be shown to be entitled to all that he asks.

The same line of distinction appears in the case of Cody v. First National Bank (supra), where the court quote from a controlling authority, that where “ all of the allegations of the complaint are made for the purpose of procuring equitable relief, and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed,” and add: “ We reach the conclusion that the converse of this proposition is also true, and is the law to be applied here — where only legal redress is demanded and no answer is interposed, the complaint cannot be sustained for equitable relief.”

In a dissenting opinion in Black v. Vanderbilt (70 App. Div. 16, 24) Mr. Justice Laughlin, apparently in harmony with the court in this regard, says: “ The preponderance of authority seems to be to the effect that on a demurrer, for the purpose of ascertaining whether a good cause of action is stated, the inquiry is whether the plaintiff would be entitled to a judgment for any relief by default. Accordingly it is held that where a pleading is framed as an action at law, and there is no prayer for any form of equitable relief, if the complaint fails to state a good cause of action at law, it is demurrable even though the facts would afford ground for equitable relief; and it is likewise held that where all the allegations of a complaint are for equitable relief,"and equitable relief only is demanded, if a good cause in equity be not alleged, the complaint is demurrable even though the facts stated show that the plaintiff has a cause of action at law.”

But there is a distinction between the facts sufficient to constitute a cause of action, and the facts which might determine the action of the court in granting equitable relief. A cause of action is stated when a complaint shows a wrong on the part of one individual or corporation resulting in legal damages to another, and while the facts as they appear in this complaint might not be definite enough to authorize the court to grant the full relief demanded, we are of the opinion that the court would be authorized to give judgment restraining the defendant from operating its bowling alleys at unreasonable hours, or in a manner to materially impair the plaintiff’s rights in his premises. This would be within the scope of the prayer for relief, and as the action is clearly one in equity, and equitable relief only is demanded, the case is one where the demurrer should have been overruled, with permission to the defendants to answer. A court of equity is not bound to give relief in every case where there is good cause of action asserted; the damages may, in the judgment of the court, be too trifling to warrant the relief, or there may be equities on the part of the defendant superior to those urged by the plaintiff, and these would be reasons why the court should refuse to take cognizance of the case, but these are matters going to the judicial discretion of the court, and have nothing to do with the question of law presented by a demurrer as to the sufficiency of the complaint.

The complaint in this action is almost identical in form with that used in the case of Friedman v. Columbia Machine Works (99 App. Div. 504), and, in our opinion, does state facts sufficient to "constitute a cause of action. Whether, upon a trial, the court would be justified in issuing an injunction is not before us; we are only to inquire if a cause of action is stated. The broad facts alleged open the way to proof of a nuisance of a continuing character, for which there would -be no adequate remedy at law, and if these facts are established we see no reason why the plaintiff should not have relief. ■

The interlocutory judgment should be reversed, with costs, and the demurrer should be overruled, with costs.

Hookee, Rich and Miller, JJ., concurred; Jenks, J., concurred in result. ,

Interlocutory judgment reversed, with ■ costs and disbursements, and demurrer overruled, with costs, with leave to defendant to plead over.  