
    Otto Bloomquist, Respondent, v. John Farson and Others, Appellants. Wallace L. Snow, Respondent, v. John Farson and Others, Appellants.
    Fourth Department,
    November 17, 1915.
    Pleading — equity — adequate remedy at law must be pleaded as a defense — form of judgment for the return of securities.
    A defense in a suit in equity, that the plaintiffs have an adequate remedy at law, must be pleaded and cannot be raised for the first time by motion to dismiss at the close of the plaintiffs’ case.
    Form of a judgment, providing for the return to the defendants of securities received by the plaintiffs, stated.
    Appeal in the first action by the defendants, John Farson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 24th day of February, 1915, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, granting plaintiff an extra allowance of $500.
    Appeal in the second action by the defendants, John Farson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 24th day of February, 1915, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, granting plaintiff an extra allowance of $400.
    
      Hawkins, Delafield & Longfellow [Adelbert Moot and Helen Z. M. Rodgers of counsel], for the appellants.
    
      Thrasher & Clapp [L. L. Thrasher of counsel], for the respondents.
   Per Curiam :

It is urged upon these appeals, apparently for the first time, that plaintiffs have an adequate remedy at law and that the complaints should have been dismissed at the trial for that reason. It is claimed that the question was raised by the motions to dismiss the complaints at the close of plaintiffs’ case. Among other grounds stated in support of the motion was this: “That the plaintiff has not made out any cause of action and that he is not entitled to any relief from a court of equity upon the proof submitted; ” also “That the proof submitted makes no case for any equitable relief whatever.”

We think the grounds so stated in connection with the other grounds urged did not call the attention of the trial judge specifically to the claim that plaintiffs’ remedy was at law rather than in equity. The motion seems to have been based rather upon the claim that plaintiffs had not made out a case entitling them to relief in any court. But, assuming that it was the intention of plaintiffs’ counsel to raise the question that plaintiffs had an adequate remedy at law, we think it was too late at that time to raise such a question. The rule seems to be settled by authority in this State that such a ground of defense must be pleaded by the defendant in his answer. (Kobbi v. Underhill, 3 Sandf. Ch. 277; Town of Mentz v. Cook, 108 N. Y. 504; Ketchum v. Depew, 81 Hun, 278; Baron v. Korn, 127 N. Y. 224; Walls v. Adler, 130 id. 646.)

The other questions urged by appellants as ground for reversal are, we think, sufficiently and correctly considered and disposed of by the opinion of Mr. Justice Wheeler at Special Term (88 Misc. Rep. 615).

It was conceded upon the argument that the judgments should be modified so as to provide for the return to the defendants of the securities which plaintiffs received of them. The proper form of such modifications is as follows:

In the Bloomquist case there should be inserted in the next to the last paragraph of the judgment after the words “ have execution thereof ” and before the words '“ This provision to become operative at the expiration of ten days,” the following: “That upon recovery of said sum from the said defendants plaintiff deliver to said defendants, or to their attorneys, the said ten bonds of the North Sterling "Irrigation District and the said ten bonds of the Greeley-Poudre Irrigation District so sold and delivered by the defendants to the plaintiff, numbered as .hereinabove stated.”

In the Snow case there should be inserted after the words “have execution therefor” and before the words “This provision to become operative at the expiration of ten days,” etc., the following: “ That upon recovery of said sum from the said defendants the plaintiff deliver to said defendants, or to their attorneys, the said eight bonds of the North Sterling Irrigation District and the said eight bonds of the Greeley-Poudre Irrigation District, so sold and delivered by the defendants to the plaintiff, numbered as hereinabove stated.”

The judgments appealed from should be modified as above stated, and as so modified affirmed, with costs, and the orders granting plaintiffs extra allowances of costs should be affirmed, without costs.

All concurred; Lambert, J., not sitting.

In each action judgment modified in accordance with opinion, and as so modified affirmed, with costs in each case to respondent. Orders affirmed, without costs.  