
    Irene E. Storm, by Guardian, etc., Resp’t, v. Jacob L. Vandenburgh et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1895.)
    
    1. Equity—Complaint—Remedy at law.
    A complaint in equity need not contain an allegation that the plaintiff has no adequate remedy at law.
    3. Same.
    An action for damages against a trustee, though solvent, is not such an adequate remedy as to oust equity of jurisdiction of an action against him hy the cestui que trust to set aside the sale of land.
    Appeal from an interlocutory judgment overruling a demurrer to the cord plaint.
    
      Hector M. Hitching, for app’lts;
    
      Josiah T. Marean, for resp’t.
   Pratt, J.

The appellants object to the complaint that it contains no allegation that the plaintiff had no adequate remedy at law. No such allegation is necessary. When the case made by the complaint sufficiently shows the need of an equitable remedy, the only'benefit from an allegation that such relief was requisite will be to call attention to a fact which already sufficiently appears. In the present case the complaint avers the destruction of a trust in which the plaintiff has a contingent interest. There being no allegation that the trustee is insolvent, the defendants suggest that an action'for damages against the trustee is an adequate remedy. In order to oust the equitable remedy, the legal remedy must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Boyce v. Grundy, 3 Pet. 210; Arthur v. Oakes, 11 C. C. A. 209; 63 Fed. Rep. 328. Or, as expressed by Fuller, O. J., in Kilbourn v. Sunderland, 130 U. S. 505, 514, the jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy in equity. In other words, the suitor is entitled, not only to an adequate remedy, but to the best remedy, which must depend on many considerations, as to which the suitor is in general the best judge. Under any other rule the rights of the suitor will often, while ostensibly protected, practically be sacrificed, and he will get the shell of protection and lose the substance. To sum up, in any given case the suitor is entitled to avail himself of the best-remedy afforded by either law or equity, and in the price he may proceed to protect the fund, and will not be remitted to an action at law against the trustee. As pointed out in the opinion below, a contingent remainder is a right which courts recognize and will protect.

Judgment affirmed, with costs.  