
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al. Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Pleading—Equity.
    Where an entire scheme of action is set forth against many defendants, for equitable relief and nothing else, and the bill fails, plaintiff cannot turn it into a legal action against some one of the defendants, because as; to him certain facts are pleaded which might entitle plaintiff to damages-against him. .
    Appeal from judgment dismissing complaint.
    Action to procure the cancellation of a contract, the return of certain shares of stock and for other relief.
    
      B. J. Moses, Jr., for app’lt; E. Louis Lowe and H. Major, for resp’ts.
   Patterson, J.

This is an appeal from a judgment directed at. the circuit dismissing a complaint on the merits and also from what appears to be an order directing the judgment, and in which are stated, among other things, the peculiar circumstances under.which that direction for judgment was given.

The judge below dismissed the complaint on a concession of" counsel “ that by an order entered herein on [November 15, 1888,. this court at a previous circuit thereof has already decided that no. relief can be granted to the plaintiff under the complaint in this-action and that the said complaint should be dismissed on the-merits unless the plaintiff paid the costs of the last named circuit, and applied at special term, for leave to amend said complaint, and. it having been also conceded that the plaintiff paid said costs and made said application under and pursuant to said-order, but that, said application was denied and the order denying the same was affirmed at the general term of this court on January 16, 1891. ”J It therefore clearly appears that what induced the court below to> dismiss the complaint was an admission that certain anterior proceedings in the action were of such a character as in the mind of ■.the learned judge required that course to be pursued.

On studying the record we find that the complaint is one .strictly drawn as presenting a cause of action of purely equitable cognizance as between all the parties. It was framed to present nothing but the alleged equities of Sleeman,' the plaintiff, under contracts with parties interested in the National Gas Saving Company, and to protect him from alleged wrongs intended to be perpetrated on -him by persons acting for him or in his interest either .as his attorneys or being bound to him by sotiie fiduciary rela■tion. It is not necessary to state in detail the alleged facts constituting. the supposed cause of action. It suffices that the complaint in its structure is one purely and simply presenting equities as against defendants who could not on the very facts pleaded •all be liable at common law for all that is set forth therein, and on the whole case as stated the relief demanded was only such, as -a court of equity can award.

As an equity cause it came up for trial at the special term before Mr. Justice Yan Brunt in December, 1886. It then appeared that in consequence of the non service of process on certain of the defendants the complaint must be dismissed and that was done 471.S0 far as it prays for equitable relief in this action.- As nothing but equitable relief was prayed for that ought to have been. ■enough to dispose of the whole case, but two years later it came ■ on-for trial at circuit, it evidently having been supposed that there ■was enough in the complaint and answers to raise a common' law issue against somebody, to be tried by jury. Mr. Justice Barrett, ■presiding at the circuit, disposed of the whole casé very properly •on a simple inspection of the pleadings and held, That the court .having inspected the complaint and having determined that no relief can be had thereunder ” a juror might be withdrawn, and the plaintiff was allowed to move at special term to amend the complaint in compliance with certain terms imposed. This permission was availed of and the terms were accepted. Subsequently the motion made at special term was denied; an appeal was taken from the order and it was affirmed at the general term. The learned judge at the last trial evidently regarded the order made by Mr. Justice Barrett as concluding the plaintiff from bringing the case on again on the same complaint; but without holding that Judge Barrett’s decision is res adjudicata, it is quite plain that the complaint was properly dismissed. As said before, it is drawn as one in equity setting forth'facts for equitable relief against all of the defendants. The effort made was to turn it into a common law suit against some of the defendants because there are several allegations of facts which might sustain an action at law against one or more of such defendants. 'It was never intended to carry the rule of Sternberger v. McGovern, 56 N. Y., 12, to that extent.

■ That was an action for specific performance, but the complaint filso showed facts which would entitle the plaintiff to damages ior a breach of contract in case the equitable remedy could ■ not be allowed, and it was held that under such circumstances, the ■equitable cause of action failing, the defendant would not be put to a new suit, but might recover his damages in that action. That is very far from holding that where an entire scheme of action is set forth against many defendants for equitable relief and nothing ■else, and the bill fails, the plaintiff may turn it into a legal action against some one of the defendants because as to him certain facts are pleaded which might entitle the plaintiff to damages against that defendant.

The judgment appealed from so far as it dismissed the complaint must be affirmed, but there is also an appeal from the ■order granting an extra allowance of $500. There was no foundation we think for such an allowance, and the judgment should be modified by deducting therefrom the amount thereof, and as modified affirmed, without costs.

O’Brien J., concurs.

Van Brunt, P. J.

I concur in the result. In so far as the •complaint was dismissed upon the ground that the order of Mr. Justice Barrett was a binding adjudication, an erroneous view of the effect of that order was taken.

The question of the sufficiency of the complaint upon the last trial was unaffected by the order of Mr. Justice Barrett, and should have been decided as though no such order had been made. I agree with Mr. Justice Patterson that no common law cause of action was set out, and the complaint was therefore properly dismissed.  