
    Margaretha Krenzle, App’lt, v. John W. Miller, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    Jury — Action to declare chattel mortgage held in trust.
    Where the complaint alleges that a chattel mortgage executed to defendant and foreclosed by him was given to him in trust for plaintiff’s benefit, and the proceeds belong to her, that undue influence was used in procuring the same, and asks for an accounting and payment of the proceeds, the action is one in equity, although the judgment will be one for money only, and the issues are not triable by jury.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment of the special term.
    
      W. M Bosébault, for app’lt; Q. A. Strong, for resp’t.
   Brady, J.

This appeal is presented in such imperfect form, and substance that it might be dismissed. It contains no certificate or consent as required by the Code and rules of the court, but having examined it, and having discovered that it presents no, merits, it may readily be disposed of adversely to the appellant, on the question attempted to be presented. The plaintiff claimed that a chattel mortgage made to the defendant and foreclosed by him was given to him in trust for her benefit, and that the proceeds which she sought to recover belonged to her. The defendant succeeded on the merits, but the plaintiff having demanded a jury trial, appeals from the refusal of the judge presiding at special term to grant it. The complaint presented a case for equitable intervention. The paper referred to was by the complaint alleged to be different from its purport, and the court was asked to reform it by impressing a trust upon it and then to carry out that result to its legitimate ends, namely, a judgment declaring the proceeds of the sale of the trust estate to belong to the plaintiff. The complaint alleges undue influence, and asks that the defendant may be required to account. This makes the action, taken in connection with other facts asserted, one of equity. As said in Bell v. Merrifield, 109 N. Y., 207 ; 14 N. Y. State Rep., 796, “the mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury. Courts of equity give judgment for money only where that is all the relief needed.” Here, however, relief is needed which is essentially preliminary to the money judgment, namely a change in the character, design and object of the mortgage, then if that be ordered, an accounting to determine pecuniary results by that proceeding, and then a judgment for the sum found to be due.. It is unnecessary indeed to state anything more to show how certainly right the ruling was which is complained of. The case cited illustrates the principles to be applied here, and none other is requisite. The appeal was, it would seem, only a waste of time and expense for the reason that the plaintiff lost upon the merits, but appealed not. The judgment should be affirmed, with costs.

Van Brunt, P. J.

I dissent. I am of the opinion that the appeal should be dismissed.

Daniels, J.

I agree to the result, although the court might very well decline to hear the appeal because of the incomplete condition of the papers.  