
    CHARLES N, BLACK, Trustee of Benjamin M. Hartshorne, Plaintiff and Appellant, v. SAMUEL B. WHITE, Dependant and Respondent.
    T. Trial by jury.
    1. Waiver of, by proceeding with trial.
    
    1. Where a party proceeds with the trial before the court, without a jury, without demanding that the trial be had before a jury,' and claiming his right thereto,'he waives such right.
    
      a. Where a complaint is based on the theory that the cause of action therein set forth is one of equitable jurisdiction, and the demand is for equitable relief, but the complaint contains allegations of fact sufficient, if proved, to entitle the plaintiff torecover in an action at law, the defendant, by proceeding with the trial before the court, without a jury, without objection, and claiming a right to a trial by jury, waives ■his right to insist, at the close of the evidence, that, no equitable cause of action having been established, the complaint must be dismissed, although it contains allegations of fact, which, having been established, entitles the plaintiff to recover in an action at law, on the ground that as to the legal cause of action he is entitled to a trial by jury.
    1. Duty of the court under such circumstances. .. See post.
    
    II. Trial by court, without a jury.- No demand bob a jury TRIAL, OB OBJECTION TO PROCEEDING WITHOUT A JURY, BEING MADE.
    1. Complaint based on the theory of an equitable came of action, but containing allegations of fact sufficient to constitute a legal came of action.
    
    
      a. Duty oe the court on determining that no equitable
    CAUSE OE ACTION HAS BEEN ESTABLISHED. THIS DUTY IS, Either to transfer the cause to the calendar for jury trial; Or to strike it off from the equity calendar;
    
      Or to proceed and dispose of it as a common law action. 1. This latter, although it may in some respects be necessary to conform the pleadings to proof provided such confirmation does not substantially change the claim or defense.
    5. Dismissal oe complaint under such circumstances is ERRONEOUS.
    
      Decided May 2, 1874.
    Before Mohell, Oh. J., Curtis and Speir, JJ. .
    Appeal by plaintiff from judgment entered on a decision rendered on a trial by the court without a jury.
    On July 22, 1871, the firms of Hartshorne & Brand, maltsters, and Hartshorne & Co., brewers, executed general assignments for the benefit of their creditors, to Samuel B. White, the defendant. He was a large creditor, and the father of Frank S. White, a partner in the firm of Hartshorne & Co. The assignee undertook to carry on the business through the agency of members of the firm of Hartshorne & Co., for the benefit of the creditors of the two 'firms. The brother of Hartshorne, who was a member of each firm, desiring to aid in the payment of the debts, placed in the plaintiff’s possession ten thousand dollars, to be advanced by him, for the purpose of aiding in carrying on their business. The plaintiff thus testified, as to the arrangement made with the defendant:
    
      “ Q. Did you ever see the defendant in reference to advancing ten thousand dollars, for the purpose of carrying on this business ; if. so, state what occurred 1
    
    “A. I did ; I saw him after 1 received the money from Mr. Hartshorne'; I went to the bank for that express purpose one morning, and I told him that Mr. Benjamin Hartshorne had given me this money; I told him that the understanding was, that the money was to be handed over by me, provided the money itself, and the interest on it, was paid back to me after it was used in the manufacture of malt, or when I saw fit to demand it; that I would give the money with his assent to these men, Edward M. Hartshorne, Frank S. White and Alexander Brand, to buy malt with in Ontario county, at their malt house, in Phelps ; it was understood that the amount of capital would be about sufficient to pur- • chase about malt enough; but as I understood it, it would be hardly enough, and I tbld Mr. White, as he was a large creditor, and as his son was in the concern, he ought to advance a similar sum ; I told him the more capital he had the sooner they would be able to pay their debts ; that the object of Benjamin M. Hartshorne, in giving me this money, was to aid them ip paying their debts; he did not want any profit from it, but the profit I told him, if any was made, would go to the payment of the debts; Mr. White said he would not advance any money, but he would do this, he suggested they owed him more than ten thousand dollars, and that he would allow ten thousand dollars of his debt to stand, so that in the general distribution of the assets in paying off the debts, he would not apply any of the proceeds to the payment of the ten thousand dollars due him ; I told him with that understanding, that he would pay back this money when we wanted it, principal and interest, I would go on advancing.
    “Q. (By the Court.) You said to him, if he, Mr. White, would pay it back %
    
    
      “A. I stated to Mm, he must pay it back.
    “ Q. {By the Court.) Hot they, but he ?
    “ A. Oh, no ! he ; he-was to pay it back ; he asked me when I was leaving the bank whether I would not deposit the money in the Grocers’ Bank; I told him Mr. Hartshorne had paid the ten thousand dollars to me.”
    The plaintiff advanced the ten thousand dollars in pursuance with this arrangement, and it appears to have been successfully employed in the business, for the purpose for which .it was advanced, for several months, when the assignee, the defendant, sold the brewery, and the plaintiff then demanded the payment of the ten thousand dollars, and interest, from him. He refused, and this action was brought, the complaint alleging substantially the above matters, and also that the defendant held this sum in trust, and had employed it for the purpose of the trust, and demanding an accounting, and judgment for the sum and interest.
    At the trial at special term without a jury, the court dismissed the complaint, without prejudice to plaintiff’s right to bring another action at law. •
    
      Chas. It. Black, attorney, and Geo. M. Rea, of counsel for appellant, urged among other things:—I.
    The proof sustains the complaint. There is no variance. The defendant does not allege that he has been misled. Hence, there is no material variance (Code, § 169). He was, therefore, apprised of the facts by the complaint, and even if he had been entitled to a trial by a- jury, he waived it by proceeding with the trial. He should have objected and demanded a jury before proceeding with the trial (McKeon v. See, 51 N. Y. 301; Greason v. Keteltas, 17 Id. 491, 498).
    II. The distinction between actions at law and suits in equity is abolished (Code, § 69), and the complaint need oMy contain facts constituting a cause of action, and a demand of the relief to which the plaintiff supposes himself entitled (Code, § 142). The complaint should not have been dismissed (Emery n. Pease, 20 N. Y. 62, 64 ; Barlow v. Scott, 24 Id. 40, 45; Phillips v. Gorham, 17 Id. 270, 274, 275),
    III. The most that could have been said as error was that the case was on the wrong calendar, or irregularly on the calendar, which the court could and would have corrected on motion. The defendant, therefore, had a perfect remedy, of which he should have availed himself. The complai nt should not have been dismissed for a mere irregularity.
    
      Samuel O. Adams, attorney, and together with J. M. Ouiteau, of counsel for respondent, urged among other things.—I.
    The plaintiff cannot maintain this form of action. He claims equitable relief—the facts show simply a money demand. Ho trust was created by the agreement between the plaintiff and defendant. In Craig v. Hyde, 24 How. Pr. 313, it was held, that where a party claims equitable relief, and the facts show a money demand, the complaint must be dismissed. See also, to same effect, Towle v. Jones, 1 Robt. 87 ; Ryder v. Jenny, 2 Id. 56; Durant v. Gardner, 10 Abb. Pr. 445). The complaint was properly dismissed, and the judgment and order appealed from should be affirmed, with costs.
   By the Court.—Curtis, J.

Two grounds are stated by the defendant as the reasons on which the dismissal proceeded. First, that the plaintiff failed to prove any cause of action. What is indicated in the statement of facts as proved at the trial, is a sufficient answer to a motion to dismiss on that ground. As the case shows that the court granted ‘the motion to dismiss, “without prejudice to the right of the plaintiff to bring another action at law” it may be inferred, and it was by the defendant secondly claimed, that it was dismissed, because the evidence failed to show that the plaintiff was entitled to equitable relief, and that the defendant had been entitled to a trial by jury.

Though something is stated on the plaintiff’s points, in reference to the repayment of this money being dependent upon the vicissitudes of trade, and that the defendant did not agree to return the money at all events, nothing appears in the pleadings or evidence, showing that the contract with the defendant was otherwise than that he should repay the principal sum and interest on demand. If the case showed that the plaintiff’ s right to a repayment depended upon what might be disclosed upon an accounting as to the profits of the business conducted by the defendant, that would be a proper subject for the exercise of an equitable jurisdiction.

As the case appears, the plaintiff has a clear right to recover upon a money demand, and the defendant was entitled, under the State constitution, to a trial by jury, provided he had not waived it. But he proceeded with the trial without objection, which is clearly a waiver of his right. If he did not intend to waive it, he should before proceeding with the trial have demanded a jury, and objected on this ground.

It is too late to take the objection, when the trial has been proceeded with, and he has omitted to object, or to call the attention of the court to his claim to a jury trial (Greason v. Keteltas, 17 N. Y., 498; McKeon v. See, 51 N. Y. 301).

But if the defendant had duly shown his right to a jury trial, it would have been a good reason for a direction by the court that the action should be transferred to the calendar for jury trials, or struck off from the calendar upon which it had been irregularly placed, but not a sufficient reason that the complaint should be dismissed ; or the court could have disposed of it as a common law action, conforming the pleadings to the facts proved, when such amendment does not change substantially the claim or defense” (Code, § 173).

Either of these courses was open to the court, and would have been more in accordance with the practice in such cases, than a dismissal of the complaint.

A new trial is granted, so that the case may go back to be tried, with costs to -appellant to abide the event.

Monell, Ch. J., and Speer, J., concurred.  