
    ANDREW H. HAMMOND, Respondent, v. JAMES MORGAN, Appellant.
    
      Equity action—Issues tried, by the jury on the pleadings—Equity judgment on verdict—Action to compel delivery and action to recover possession of written instrument—Motion to set aside judgment—Strihing, cause from special term calendar, effect of.—Judge's charge.
    
    Where the issues in an equity action are, upon defendant’s demand, tried by the jury upon the pleadings, and the jury find for the plaintiff, the proper equity judgment called for by the facts, either in terms, or presumptively found by the verdict, may be entered.
    The same facts may sustain both an equity action to compel delivery, and common law action to recover possession of a written instrument, with the addition that in the former, it should appear that damages will not make a full remedy ; and the plaintiff has an election of the remedies.
    Consequently, where the plaintiff brought an action in respect of a certain assignment and release alleged to be in the possession of defendant, and prayed that defendant be ordered to return them to him, and that he have such damages for detention as a reference might show,—Meld, that he had exercised his election and brought an action in equity.
    In case of a motion by defendant to set aside a judgment, entered in such an action as above indicated by the direction of the trial judge, upon a verdict for the plaintiff (the issues having been tried on the pleadings upon the defendant’s demand), whereby it was adjudged that defendant forthwith deliver to the plaintiff the instruments in question, the motion being made on the ground that the judgment is unauthorized by and in excess of the verdict, and is a judgment in equity and not at law, and directs the doing an act by the defendant instead of an award to the plaintiff, and does not award a sum of money in case the property was not delivered,—Eeld, 1. That questions of irregularity of practice could not be raised. 2. That the question as to whether the judge erred in adjudicating that the plaintiff was entitled on the facts found to equity relief could not be raised, that being the subject of an appeal. 3. That on the above principles the motion was properly denied.
    The striking a cause from the special term calendar on the ground that it is an action at law, only determines that the issue of fact should be tried by a jury. It does not determine that if the facts found by the jury showed that the plaintiff was entitled to an equity remedy, he should be deprived of it, because a jury, instead of a judge, found them.
    The equitable action for delivering up and surrender of instruments is not abrogated.
    
      
      Decided March 30, 1885.
    A charge to the jury that there are no equities in the case, but that it is one of law, is not in the nature of an adjudication as to what the plaintiff’s remedy was.
    Before Sedgwick, Ch. J., and Ingraham, J.
    Appeal by defendant from order denying his motion to set aside a judgment directed by a judge to be entered upon a verdict for plaintiff.
    The complaint alleged that the plaintiff delivered to the defendant a certain written assignment of letters-patent, made by the executors, etc., of one Matthews ; “that said assignment was delivered to the defendant in trust to be returned to the plaintiff, etc., but defendant has failed, and refused to return the same to the plaintiff, and still wrongly refuses to return the same, although the return thereof has been duly demandedthat “in or about, etc., a paper in the nature of a release was executed by the firm of E. P. Needham & Son, etc., to the plaintiff, whereby the plaintiff was wholly released from certain obligations due, and contracts to and with the said firm, of which release the defendant obtained possession, and still retains the same without right thereto, and in violation of plaintiff’s right to the possession thereof, although a demand for a delivery thereof to plaintiff has been duly made on the defendant and refused ; that said assignment and said release, and each of them, is of great value to the plaintiff, and the retention thereof by the defendant as aforesaid, has greatly damaged the plaintiff. Wherefore, plaintiff asks judgment of this court, that the defendant be ordered to return said assignment, and deliver said release to the plaintiff, and that the plaintiff have such damages for the detention thereof, as a reference for that purpose may show that plaintiff has suffered therefrom, besides the costs of this action.”
    The answer denied that the instruments referred to were ever in trust or otherwise delivered to the defendant to be returned, “and denies that said or such papers or instruments, or any or either of them, or any such instrument or instruments, were ever executed by the said parties for that behalf in the complaint mentioned, or any of them, and denies that said or such instruments are now or ever have been in the possession, legal or manual, of this defendant, ” etc.
    The plaintiff’s attorney originally gave notice for a trial of othe issues by a jury, but afterwards gave notice for a trial at special term. The defendant’s counsel moved at special term that the cause be stricken from the special term calendar. The affidavit read upon the motion in the matter which is the subject of the appeal, declared that the motion to strike from the calendar was on the ground c ‘ that the action was at law, and the defendant desired, and was entitled to a trial by jurythat the judge “ ordered the cause to be stricken from the said special term calendar.” Thereafter, the plaintiff gave notice of trial before a jury. The affidavits show that there was a trial, but do not disclose what proceedings were had thereon, excepting that the “defendant herein was never examined in this cause, otherwise than as a witness on his own behalf at the trial thereof, and upon such examination he testified without qualification that he had never received or had in his possession either of the paper writings mentioned in the complaint, and he was corroborated as to each, by other witnesses; that the court on the trial of the cause distinctly and especially charged the jury that the cause was an action at law, that there were no equities involved, and the only questions were, did the papers exist, and did the defendant have them in his possession,- when they were demanded of him ? And at defendant’s request, he specially and distinctly charged the jury that if they believed the defendant’s witnesses, naming them, they were bound to find for defendant.” The affidavit for defendant proceeds to say, that the trial resulted in a “general verdict for plaintiff,” of which a copy is : “ that they find a verdict for plaintiff, and find the title to the property in suit in the plaintiff, and that he have a return thereof. Jury polled, and found unanimous. Motion for a new trial denied. Motion for stay to be heard to-morrow morning, November 11, 1884. Motion for a stay withdrawn.”
    Thereafter, on the application of plaintiff’s attorney, the judge who tried the cause made an order ex parte for judgment, which judgment was afterwards entered ex-parte. This judgment “ ordered, adjudged and decreed, that James Morgan, the defendant, deliver forthwith to the plaintiff ” the instruments mentioned in the complaint. No point is made as to the description in the judgment of these instruments.
    The notice of motion to set aside the order for judgment, and the judgment, stated its ground to be that the action is “an action at law and was tried by a jury, and that said order is not warranted or authorized by law in said action, and because it directs a judgment not warranted by the verdict and in excess of the verdict; also to modify the judgment entered herein and make the same conform to the verdict herein, by striking out therefrom the language directing defendant to deliver, and substitute language adjudging the title of the property to plaintiff and adjudging a return thereof to him. Or else that said judgment be vacated on the ground of irregularity, for that it is unauthorized by the verdict and is in excess of the verdict and appears to be a judgment in equity and not at law and appears to direct affirmatively the performance of an act by defendant, instead of containing an award to plaintiff, and does not in addition to such award provide in the alternative for the recovery of a sum of money, incase the property is not delivered.” The motion was denied. •
    
      Edward S. Babcock, attorney and of counsel for appellant,
    on the questions considered by the court, argued : —I. The order for judgment made and entered November 14, 1884, is irregular and should be vacated, a. It is irregular because it is a departure from that method of procedure required by. the nature of the case, settled by the law, and provided by an imperative statute of practice, viz., the Code. b. The nature of the case is an action at law of the genus replevin and species detinue, and requires a trial by jury. It was originally an action of debt (2 Beeves’ Hist. Eng. Law, title Detinue). By settled practice of the law during centuries, it was triable by jury, because it was an “ action at law” '(Bacon’s Ab’t, title Detinue; Chitty’s Pr. title Detinue; Tidd’s Pr., title Detinue; Graham’s Pr. title Replevin; Beeves %\bi supra). And in this state by statute (1 Bev. Laws, 91, § 1; Bev. Stat. 5 Ed. 845, § 1; Code Civ. Pro. § 968, sub. 2, § 1726). c. The whole issue therefore was with the jury, and their verdict was the sole legal authority for a judgment. After the trial of an action at law before a jury, and verdict by the jury, the next regular step in the cause is to the clerk. There were no issues framed, and no special facts found, and no consent or agreement by the parties that the jury should pass on questions of fact and the court make a direction for judgment thereon. Such a consent must appear on the record (Lentilhon v. Mayor, 3 Sand. 722). Here the jury did not pass upon anything less than the whole issue, and their verdict shows it (Code, § 1189). This order for judgment cannot be sustained under any provision of the Code. It is not covered by section 1221, for there was no issue of law in the case ; nor by section 1224, for it was not an action triable by the court, and no specific questions of fact were tried by jury, the jury tried the whole issue ; nor by section 1228, for the whole issue of fact was not tried by a referee nor by the court, without a jury. It is not an interlocutory judgment, for the action was not triable, nor tried by, the court; nor a decision, for it does not state any findings of fact or conclusions of law in addition to the direction for judgment as provided by section 1022. Indeed, it could not be such, for the court did not and could not try the whole issue of fact.
    II. The judgment entered in this action is irregular. 1. Because it purports to command the defendant to do a certain act as if it were a judgment in equity. 2. Because it is not the judgment imperatively required by law, in that it does not award to the plaintiff the possession of the property and the sum fixed as the value thereof to be paid by the defendant if possession thereof is not delivered to the plaintiff (Rastell, title Detinue ; Bac. Abr. tit. Detinue ; 2 Reeves’ Hist, of Eng. Law, tit. Detinue ; Tidd’s Pr. Am. ed. 1856, m. p. 931; 1 Chitty, 12 Am. ed. m. p. 125 ; Paully v. Holly, 2 W. Blacks. Rep. 853 ; Selwyn’s Nisi Prius, 6 ed. 670; 1 Rev. Laws, 91, § 1 et seq. 3 Rev. Stat. 5 ed. 846, §§ 6, 10, 13; Code of Pro. § 277; Fitzhugh v. Winan, 9 N. Y. 559 ; Dwight v. Enos, Ib. 470 ; Gallarati v. Orser, 27 N. Y. 324 ; Code, §§1730,1731, 1375, 718, 1241, 968, 1726, 1241, 1373 ; Haight v. Haight, 7 Hun, 87 ; 2 Chit. Pl. ed. 1855, 592, 593).
    III. This judgment, failing in every respect to comply with the law, is an irregularity, a very grave one indeed, and amounting to a perversion of law and justice ; but still irregularity is its distinguishing characteristic. It is the form and manner in which the thing exists that causes the mischief. And being such an irregularity, the proper mode of attacking it is by motion at special term, and not by exception and appeal (Ingersoll v. Bostwick, 22 N. Y. 425 ; Johnson v. Carnley, 10 Ib. 579 ; Young v. Atwood, 5 Hun, 225 ; First Nat. Bank v. Kelley, 57 N. Y. 34).
    
      Marshall P. Stafford, attorney and of counsel for respondent,
    on the questions considered by the court, argued :—I. The trial justice had power to direct what judgment should be entered upon the verdict (Code Civ. Proc. § 1189 ; Scott v. Morgan, 94 NY. 508 ; Wright v. Nostrand, 94 Ib. 31; Carroll v. Deimel, 95 Ib. 254).
    II. The action is one for specific performance. Where the value of property the possession of which is desired cannot easily be shown, the court has equity power to decree its delivery (Brooks v. Johnson, 93 N. Y. 337). The difficulty of proving the value of the papers sued for here is manifest, while the fact that they are or may be of very great value is equally manifest. Their delivery therefore should be decreed, and the complaint is clearly drawn to secure this result.
    III. The appellant has no right that the judgment should be in the alternative for money in lieu of the property (Haight v. Haight, 7 Hun, 87).
    IV. If the order made by the trial judge were erroneous, defendant’s remedy is by appeal and not by motion to vacate. There is certainly nothing irregular in the order of the trial justice directing the form of judgment to be entered. He assumed and exercised the power to make the order. If he erred in so doing, the error is one of law, and the only remedy is by appeal and not an application to some other judge to vacate the order. The judgment entered is in exact accordance with the order directing judgment. There can therefore be no claim that there is any irregularity in it.
   By the Court.

Sedgwick, Ch. J.

The learned counsel for the defendant maintains that the action is at law of the genus replevin, and requires a trial by jury. It is to be observed that the defendant has had a trial by jury. It is, however, not certain that the action is in the nature of replevin or detinue. The same facts that would give in respect of a right to recover possession of a written document, a remedy at law, may also give a remedy of an equitable kind, at the election of the plaintiff. “But there are cases of personal goods and chattels, in which the remedy at law by damages would be utterly inadequate and leave the injured party in a state of irremediable loss. In all such cases, courts of equity will interfere and grant full relief by requiring a specific delivery of the thing which is wrongfully withheld ” (Story Eq. § Y09). In the note to that section a reference to a condition of things stated in the complaint as to part of the property, is applicable. “Belief will also be granted, when the party in possession has acquired such possession through an alleged abuse of power on the part of one standing in a fiduciary relation to the plaintiff.” The complaint says that the defendant received the assignment in trust. In Jackson v. Butter (2 Atk. 306), the bill was to recover possession of a mortgage and an assignment of it. The chanceller said the plaintiff might have had an action of trover, but then he could only have damages for the detaining, but not the deeds themselves, and therefore is proper in bringing a bill here for the recovery of his deeds.

The same facts may sustain the action in equity and the action at law, with the difference that in the former it should appear that damages will not make a full remedy. If this action had been tried as an equity action is usually tried, and all the facts had been formally found by the judge that have here been found by the jury, it would have been no ground to set the judgment entered on the findings aside, because the complaint did not aver and the judge did not find, that the plaintiff would not have redress by receiving an amount as damages. Nor indeed, would that be held error on appeal if no question as to it had been raised on the trial. It cannot in such a proceeding as that below, be determined that the intrinsic nature of the documents claimed did not show that the plaintiff was entitled to a judgment, that the defendant deliver, etc.

The jury at the instance of defendant determined all the issues of fact in favor of plaintiff. They found that all the facts stated in the complaint existed, and they also found for the plaintiff, so far at least as presumption goes, that the defendant at the beginning of the action held possession of the assignment and release. Thereupon, the plaintiff claimed, that upon these facts, the law gave him the remedy he afterwards obtained. He had demanded in the complaint a relief of that kind. He did not ask the usual judgment at law. The judge who tried the case granted the application. This was done ex parte and upon no findings of fact. Neither of these things were relied upon on the motion to vacate, nor did the defendant claim that there should be a further trial at special term, if such a judgment were to be demanded. The ground was definite, that the action was at law and the verdict did not authorize the judgment. But it has already been considered that it does not appear that the action was at law, and certainly the verdict per se is not unconsistent with the judgment that was entered. There is a semblance of irregularity in trying an equity case, as to the facts solely before a jury, without a special order for it. The plaintiff however, attempted to try the issues before a judge. The defendant objected to this and had the case stricken from the special term calendar, on the ground that it was an action at law. Such perhaps, though that does not appear, was the ground on which the court directed by implication that if the plaintiff proceeded to trial, he must do so before a jury. But his order had no further effect than to determine for the purpose of trying the issues of fact, that the jury should pass upon them. It did not operate to determine, that if the facts found by the jury upon the pleadings as they stood, showed that the plaintiff was entitled to an equity remedy, he should be deprived of it, because a jury instead of a judge had found all the facts for plaintiff. It is supposed that the judgment is against the direction of the Code of Civil Procedure, sections 1726, 1730, 1731; Fitzhugh v. Wiman (9 N. Y. 559) ; Dwight v. Enos (Ib. 470) ; and Gallarati v. Orser (27 16. 324). These cases and these sections should be applied to actions where the plaintiff claims a legal remedy. The sections were not intended to abrogate any remedy in equity that would exist after they were passed, and there is nothing that tends to show that they were meant to destroy the equity remedy.

The practice in the case was unusual, but there is nothing to show that the judgment actually entered was not a mere conclusion of law from the facts found by the jury, after the defendant had demanded a jury trial. It is easily to be supposed that this Mnd of a trial waived all questions of practice, so far as defendant was concerned ; but the motion below was not placed upon matters of practice, but solely upon the compatibility of such a judgment with the verdict that was rendered in such a case. It should, perhaps, be noticed, that the affidavit states that the learned judge in charging the jury, said that there were no equities in the case, but that it was one of law. This did not injure the defendant, and was not in the nature of an adjudication as to what the plaintiff’s remedy was. It did not affect the merits of the decision of the judge, when he considered the nature of the remedy the plaintiff was entitled to. I again point out that the defendant did not ask that the judgment should be set aside, because notice of application for it was not given, or because the judge had made no finding of fact. The ground was, that it appeared from the pleadings and the verdict, that the plaintiff could have only a judgment that was appropriate in an action at law. If the judge erred in adjudicating that the plaintiff was entitled on the facts found by the jury to equity relief, that should be the subject of an appeal. The matter relates not to the form of the judgment, but to a substantial part of a claim for a certain kind of relief.

Order affirmed, with $10 costs, and disbursements to be taxed.

Ingraham, J., concurred. 
      
       Note.—As to partition actions see Code Oitil Procedure, § 1544.
     