
    Charles H. Ketchum, App’lt, v. Romaine Depew, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    1. Equity—Jurisdiction—Proof.
    An allegation, in an action for an injunction that plaintiff will be obliged to prosecute a multiplicity of actions to prevent trespasses, is not established by proof that defendant had committed a single trespass, without intention to assert any further right to come on the land.
    2. Same—Remedy at law.
    The complaint, in such an action, will be dismissed, if it appears on the trial that plaintiff has an adequate remedy at law.
    3. Same—“Waiver.
    A failure to plead that plaintiff has an adequate remedy at law, does not waive such defense, where the complaint states a purely equitable cause of action.
    Appeal from a judgment dismissing the complaint.
    
      Wm. M Morris .and M Hides, for app’lt; Charles W Kimball and Mr. Dwells, for resp’t.
   Per Curiam:

Judgment appealed from affirmed, with costs,” on opinion of Rumsey, J., at special term.

The opinion of Mr. Justice Rumsey, at special term, is as fol lows:

“ The plaintiff, in his complaint, alleged that the defendant entered upon the said premises, with his servant and reaper, and cut, and was still cutting, twenty acres of wheat growing thereon. It further alleged that the defendant daily, and several times a day, committed trespasses on said lands, and perfects a cause of action against said défendant, and that unless an injunction issue the plaintiff would suffer irreparable injury, which could not be compensated for in damages, and that to protect his rights he would be obliged to prosecute a multiplicity of suits. It needs no citation of authority to prove that if the facts thus stated were true the plaintiff would have a good cause of action for equitable relief, and that this action must be tried upon the equity side of the court. Such being the ease, there was undoubtedly no adequate remedy at law, upon the allegations contained in the plaintiff’s complaint. But the state of facts shown upon the trial was entirely different from that alleged in the complaint. All that appeared upon the trial was that the defendant entered upon the premises, and cut the wheat, and said he had been advised to do it. This was one single trespass. There was no pretense that the defendant contemplated entering upon the premises again, nor that he asserted any rights, except to take away that single crop of wheat. If the plaintiff brought an action at law for that trespass, he would be entitled, upon making a proper case, to recover the value of the wheat, and damages for the entry upon his land, and such a recovery would be a complete and adequate compensation for all that he bad suffered. Nobody can claim that such relief can be sought in an action in equity, and it is very clear than an action brought for such relief must be tried as an action at law. The case is precisely within that of Bradley v. Aldrich, 40 N. Y. 504. In that case it was said that “if a party brings an equitable action even now, when the same court administers both systems of law and equity, the party must maintain his equitable action upon equitable grounds, or fail, even though he may prove a good cause of action at the trial.” Such was the decision of the court of appeals in the case of Mann v. Fairchild, 2 Keyes, 111, which was followed in the case of Bradley v. Aldrich, supra. In the case last mentioned the action was brought for equitable relief, and that the defendants be required to rescind a contract which it was claimed they had procured by fraud. The answer in that case denied the allegations of the plaintiff, but it did not raise the question that there was an adequate remedy at law. The court, at special term, found the facts entitling the plaintiff to relief at law, but denied equitable relief. The judgment there entered was reversed at general term, without prejudice to the right of the plaintiff to bring an action at law. In the court of appeals the judgment of the general term was affirmed upon the sole ground that the plaintiff, having failed to establish a right to equitable relief, could not, in an action brought for that sort of relief, secure a remedy at law. The court say, “It was not the inteut of the law tc> enable a plaintiff to compel a trial by the court by merely alleging some ground for equitable relief, and, failing in that, have a trial of issues in an action for fraud, and an assessment of damages therefor, without a jury.” That case, as I said, is precisely in point, and requires the court to hold here that the plaintiff cannot recover in this action upon the proof made at the trial.

But it is claimed that the defendant has waived the right to object to a trial at the special term, because he has failed to set up in his answer that the plaintiff had an adequate remedy at law ; and several cases are cited which hold that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer. That doctrine was established when equitable jurisdiction was vested in the court of chancery, and legal jurisdiction in the courts of law, and it was applied in cases where the jurisdiction of the two courts was concurrent. In such cases, where the plaintiff might have sued at law, and obtained some sort of a remedy, or might have brought his action in the equity courts, and obtained a more complete remedy, it was held that, if the defendant permitted him to proceed to a hearing in the equity action without raising the point that he had a sufficient remedy at law, he had waived it. The reason was that the court of equity had jurisdiction, because, upon the facts proved, the plaintiff would be entitled to equitable relief, and that to permit the defendant to allow the case to proceed to a hearing before attempting to oust the court of its jurisdiction would result in a great injustice to the plaintiff. But it will be found that the rule was applied only in cases where, the remedy was concurrent, and it was only in such cases where the defendant was obliged to assert at the threshold of the case his claim that the action was not an action in equity. The rule was then as it laid down it the case of Bradley v. Aldrich,—that where the plaintiff came into court, invoking the jurisdiction of the courtof equity upon matters as towhichacourtof law had nojurisiction he was obliged to prove a cause of action in equity, and failing in that he lost his case. I have been unable to find any case where there was exclusive jurisdiciton in the equity court, in which the plaintiff, upon failing to prove his right to relief in equity, was still entitled to a judgment at law. In such cases the plaintiff was alway required to proceed in the law courts to obtain the relief to which he was entitled. A claim precisely like the one made here was presented to the court of appeals in the case of Dudley v. Congregation, 138 N. Y. 451; 53 St. Rep. 19, and was held not to be tenable. The opinion of the court in that case, at pages 459, 460, 138 N. Y. sustains the conclusion I have here reached, upon the authority of Bradley v. Aldrich, supra, see also Hawes v. Dobbs, 137 N. Y. 465; 51 St. Rep. 271.

The court is requested to send this case to the circuit for trial, but I do not think that such a course would be proper. It was not done in the case of Bradley v. Aldrich, and I think that this case should have the same direction as was given to that one. The complaint must therefore be dismissed, but not upon the merits.  