
    THOMAS C. CLARK, Appellant, v. JOSEPH BLUMENTHAL, et al., Respondents.
    
      Trial forum—at special term or by jury—test of.—Reformation sealed contract.
    
    The test as to the kind of trial to which plaintiff is entitled, is the nature of his demand. If, upon any supposed state of facts set out in the complaint, he claims to have a right to equitable relief, he has a right to a trial at special term. This, though it be perceived that the complaint is clearly insufficient to sustain the demand for equitable relief.
    Where a demand is made for damages, and such demand is secondary to the primary demand for equitable relief, notwithstanding such joinder, the plaintiff is still entitled to have the case tried at special term, at least primarily.
    Where the right to recover damages, as prayed for, depends on the reformation of a sealed contract, as prayed for, the plaintiff is entitled to a trial at special term, at least primarily.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Appeal by plaintiff from order striking the case from the calendar of issues of fact at special term, and directing that the issues be tried before a jury.
    The complaint contained, among others, the following averments : that the defendant, Weinberg, held the legal title of certain real estate, but “solely as the repository or trustee of the defendant, Blumenthal, and without any personal pecuniary interest therein whatever,” and that, at all the times referred to, “ the said Blumenthal received and appropriated to his own use, the entire rents and profits thereof, to a large amount;” that defendant Blumenthal negotiated and made an agreement with the plaintiff, “to convey said real estate to the latter, and received from him $1,000 on account of the purchase money;” that “in pursuance of such agreement, the plaintiff and defendant executed each to the other an instrument under seal;” that this instrument, on its face, was made between the defendant, Weinberg, and the plaintiff, and was for the sale by the former and purchase by the latter of the real estate specified, and was executed by Jacob B. Weinberg (the defendant) under his seal, “per Joseph Blumenthal,” the other defendant; that at the time of the execution of the instrument, defendant Blumenthal represented to plaintiff that Weinberg (defendant) was “the true, lawful and equitable owner of the said premises;” that before the date fixed for the performance of the agreement the defendant, Blumenthal, “sold and procured defendant Weinberg to convey the premises to one Goldstein;” and that defendant, Blumenthal, received and appropriated to his own use $18,000, paid by Goldstein to him, said Blum.enthal, as, and for, the consideration of the sale; that the plaintiff had sustained damages in the sum of $19,000, in the manner particularly alleged in the complaint, &c.; . . . “Wherefore the plaintiff demands judgment that the before-mentioned agreement,”. . . “be reformed by inserting the name of Joseph Blumenthal, as party of the first part thereto, in place of the defendant, Jacob B. Weinberg, or that the defendant, Blumenthal, be adjudged to be the true party in interest and individually affected by the said agreement and the covenants of the party of the first part therein specified; that the plaintiff recover from the said Joseph Blumenthal the aforesaid sum of $19,000 with interest.”
    After answers were served, the plaintiff placed the cause upon the special term calendar for the trial of issues of fact. Upon defendant’s motion, the cause was stricken from that calendar, and the order then made directed that the issues be tried before a jury.
    The present appeal is by plaintiff from this order.
    
      T. M. Tyng, attorney, and of counsel for appellant,
    argued :—I. This is purely an equitable action and triable by the court at special term without a jury. The action is brought to reform-a sealed instrument by making the defendant Blumenthal the real party of the first part thereto ; or to charge him, in equity, with responsibility for the performance of the covenants therein. The equitable relief demanded in the first prayer of the complaint is of the essence of plaintiff’s recovery; and, unless that is awarded him, the action must fail of result (Carroll v. Deimell, 65 N. Y. 252). No action at law could be maintained against Blumenthal on this sealed instrument (Briggs v. Partridge, 64 N. Y. 357; Story on Agency, §§ 160, 162, 422, 450, 451, 452). Full and adequate relief can be given in a trial at the equity term. A court of equity, having acquired jurisdiction of an action for the reformation of a contract, has power to proceed and award damages in the contract as reformed (Maher v. Hibernia Ins. Co., 67 N. Y. 283; Andeson v. Metro. L. Ins. Co., 18 Week. Dig. 192: Seeley v. N. Y. Nat. Bank, 8 Daly, 400 ; 78 N. Y. 608).
    II. The court below erred in awarding costs upon this motion. ' This was not a motion made upon notice, but a suggestion made without notice at the commencement of a trial, and we submit that sections 3236 and 3251, subdivision 3, provide simply for “ motions in the action,” regularly noticed and brought on for hearing pursuant to section 780.
    
      Joseph Tillman, attorney, and of counsel for respondent Weinberg, argued:
    I. This defendant is entitled to a jury trial. The complaint sets forth a cause of action against him (if at all) for damages for breach of a written contract to convey land. No allegations entitling the plaintiff to equitable relief against this defendant are made, and no equitable relief is demanded. Even if it had been, the defendant “cannot be deprived of a jury trial in a proper case, because the plaintiff has demanded equitable instead of legal relief ” (Davison v. Associates, 71 N. Y. 340).
    II. Nor can this defendant be deprived of that right by the joinder of an equitable cause of action against other defendants (Wheelock v. Lee, 74 N. Y. 495).
    
      III. This defendant has pleaded a counter-claim which is purely legal and not equitable in its nature, and which he is entitled to have tried by jury.
    
      Simson Wolf, attorney, and Joseph Ullman, of counsel for respondent Blumenthal, argued:
    I. The complaint demands “judgment for a sum of money only,” and the defendants are therefore entitled to a trial by jury (Code Civ. Pro. § 968). If there is any claim for equitable relief in the complaint (which this defendant denies) it is merely auxiliary to the main cause of action. In such a case, there must be a jury trial (Penny v. Gillett, 7 Week. Dig. 101; Ice Co. v. Insurance Co., 20 How. Pr. 424; Wheelock v. Lee, N. Y. 500).
    II. There is no equitable feature in the case. The suit is not for reformation of a contract. A contract cannot be reformed by adding parties to it. A court of equity cannot reform an agreement except between the original parties (Cady v. Potter, 55 Barb. 463 ; 5 Wait's Actions & Defenses, 451, § 8 ; Adams’ Equity, 349, 6th Am. ed. 1873). There is absolutely no authority for an action to reform a written instrument by including a new party. The only case cited below was Bartholomew v. Insurance Co. (34 Hun, 363), where the court expressly declined to pass upon the question. This action, therefore, it is insisted, is not for the reformation of the contract, notwithstanding the use of that word in the complaint.
    III. The action, as against this defendant, is simply one against an undisclosed principal, which is purely a common-law action. The judgment demanded is damages for breach of a written agreement, this defendant being alleged to be—not the party named in the agreement—but his undisclosed principal.
    IV. It was argued below that the appellant had no remedy at law. That is no reason why he has one in equity. He must first show a right. His action is for damages for breach of contract—purely a common-law action. If he has no remedy at law, he certainly has none in equity. The court, however, is not concerned with the question , whether there is a remedy elsewhere or not. The cause of action disclosed by the complaint being one for a jury, the equity term could not retain it, and properly struck it from its calendar.
   By the Court.—Sedgwick, Ch. J.

Section 968 of the Code of Civil Procedure is, that in an action in which the complaint demands judgment for a sum of money only, an issue of fact must be tried by a jury, and also in actions of ejectment, for dower, for waste, for a nuisance, or to recover a chattel. Section 969 is, “An issue of fact not specified in the last section must be tried by the court.” It is at once perceived that the test of the kind of trial is not the legal conclusion from the facts averred in the complaint, but is the nature of the demand. If, upon any supposed state of facts set- out in the complaint, the plaintiff claims he has a right to equitable relief, he has the right to present the claim for adjudication to the court at special term, and is not forced in the first instance to a trial by a jury. He has a right to the judgment of the court, and if it be unfavorable to him, then to the advantages of appeal from the judgment. Even if it be perceived that the complaint is clearly insufficient to maintain his demand for equitable relief, he still has the right to have that determined by the special term.

It is suggested in this case that the real substantial demand is for a judgment for a sum of money only. So far as defendant Blumenthal is concerned, it will be necessary for the plaintiff to have the contract reformed by making Blumenthal a party to it, before the claim for damages can be considered against him, and therefore the money demand is secondary to the primary demand for reformation. As to Weinberg, the complaint makes no personal demand, other than such as may be connected with his right to resist the placing of Blumenthal in the contract in his stead. I am of opinion that the plaintiffs had a right to have the issue tried, at least primarily, at special term.

It was asserted that the order appealed from, was made at special term after the case had been called for trial. The printed papers disclose an order made without reference to the case actually being on trial. The court, therefore, had the power to impose costs of motion, without any controversy as to what would have been its power if the order were made in the course of the trial.

The order appealed from should be reversed, with $10 single costs, and the motion below denied, with $10 single costs, and the order entered should provide that the case be placed on the special term calendar for trial.

Van Vorst and Freedman, JJ., concurred.  