
    Samuel Green, Respondent, v. John Stewart, Appellant, Impleaded with George W. Weiss.
    
      Equity action by a contract vendee to set aside as fraudulent a conveyance to a third, pevrty by the contract vendor ■—■ right to award damages only, no fraud being proved.
    
    Where the complaint in an action in equity alleges an agreement on the part of one of the defendants to convey certain premises to the plaintiff, but that such defendant subsequently fraudulently conveyed the premises to another defendant, and relief is asked that the conveyance be set aside and specific performance be awarded in favor of the plaintiff, and the defendants answer separately, and each admits the conveyance, alleges that it was for a valuable consideration, and further that the plaintiff has an adequate remedy at law for damages against the grantor defendant "who is financially solvent and able to respond in damages for the breach of any contract to which he is a party,” and the plaintiff fails, upon the trial of the action, to establish any right to have the conveyance- get- aside as fraudulent, the court should dismiss the complaint, as to both defendants,- and should not 'retain the case as to the defendant who made the conveyance in order to, enable the - plaintiff to prove his damages against, him. . ...
    Appeal by the defendant John Stewart from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25tli day of January, 1897, upon the decision, of the court rendered after a trial' at the New York Special ■ Term.
    
      Howard A. Sjoerry, for the appellant.
    
      Daniel P. Hays, for the respondent.
   Parker, J.:

This suit was brought on the equity side of the court, the complaint alleging an agreement on the part, of the defendant John Stewart to convey to the plaintiff certain premises therein described, and a'subsequent conveyance- of .the same premises to the defendant Weiss. It charged that the conveyance from Stewart to Weiss-was-fraudulent, and'the relief demanded was, that the conveyance from Stewart to Weiss beset aside as fraudulent and void as against the plaintiff;- and the defendant Stewart he compelled specifically to. perform his agreement with the plaintiff, and that, the plaintiff have the costs and- disbursements' -of the action,. and, such, other and further relief as to the court should seem; just. '

The defendants Stewart and Weiss answered separately, but each of them admitted the conveyance from Stewart to Weiss, alleging that the same was for a.valuable consideration; and further alleging that -the plaintiff had an adequate remedy at' law for damages against the defendant Stewart, “ who is financially solvent and able to respond in damages for the breach of any contract to which he is a party;. and that this plaintiff cannot maintain this action in equity by reason of such facts,” and a dismissal of -the complaint was demanded, with costs.

Upon the- trial, the plaintiff failed to establish a right to have the conveyance from Stewart to Weiss set aside .as fraudulent, .and the court promptly dismissed the complaint .as. to Weiss.

The defendant Stewart also moved to dismiss the complaint, and to a denial of that motion by the court an exception was taken which calls for a reversal of the judgment. The court retained the case for the purpose of enabling the plaintiff to prove its damages, after it had been established that he was not entitled to relief on the equity side of the court. If such a procedure could be tolerated, a party having an action maintainable at law, but which he would prefer. not to have presented to the consideration of a jury, could quite frequently so frame his pleading as to entitle him to go to trial before the court on its equity side, and then claim the right to have the court award the damages in violation of the constitutional guaranty of a right of trial by jury. The right of trial by jury the defendant could have waived, but he did not; he insisted in his 'answer that the plaintiff had an adequate remedy at law, and by reason thereof could not maintain this suit.

When then the plaintiff had rested without establishing any right to relief on the equity side of the court, and it became apparent that the only remedy he ever had was at law, it became the duty of the court, in view of the answer of defendants^ to have dismissed the complaint as to the defendant Stewart as well as to the defendant Weiss. (Bradley v. Aldrich, 40 N. Y. 504; Ketchum v. Depew, 81 Hun, 278.)

The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.

Van Brunt, P. J,, Rumsey, O’Brien and Ingraham, JJ.,. concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.  