
    William W. Doty, Appellant, v. Washington F. Norton, Respondent.
    First Department,
    June 18, 1909.
    Practice—dismissal at opening — grounds—real property — mortgage — redemption — pleading — allegation of absolute conveyance.
    ■An objection at the opening of a trial that the complaint fails to state any facts which constitute a cause of action at law triable at Trial Term is insufficient to justify a dismissal if the complaint states a cause of action either at law or in equity. If made in time such objection is ground for an order sending the case to the Special Term calendar.
    A complaint which alleges that plaintiff’s assignor made and delivered a promissory note to defendant and at the same time ás collateral security for its payment conveyed certain land to him; that defendant executed and delivered in return a defeasance agreement covenanting to reconvey the same upon payment of the note; that defendant conveyed the premises to a. third'party who is now the owner and holder thereof, and that the cause of action has been assigned to the plaintiff and demand made by her on the defendant, and which asks • judgment for the value of the land less the amount of the note, states a cause of action in equity to redeem, and-a judgment dismissing the complaint on the ground that it stated no cause of action will be reversed and a new trial granted.
    The allegation that, defendant conveyed the land to C. and that 0. is now the owner and holder thereof, imports an absolute conveyance.
    Appeal by the plaintiff, William W. Doty, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Hew York on the 17th day of February, 1909, upon the dismissal of the complaint by direction of the court at the opening of the case on a trial at the Hew York Trial Term.
    
      Edward A. Alexander, for the appellant.
    
      Henry L. Brant, for the respondent.
   Scott, J.:

' The plaintiff appeals from a judgment dismissing ■ his complaint. The dismissal took place at the opening of the case and proceeded upon two grounds :• First, that the complaint fails to state any facts which constitute an action' at law triable at Trial. Term, and, secondly, that the complaint fails to state any cause of action. The first ground stated was. insufficient to justify a dismissal if the complaint states any cause of action either at law or in equity. (Abbott v. Easton, 195 N. Y. 372.) At most, if timely made, it would only justify an order sending the cause to the Special Term calendar. As to the objection that no 'cause of action was stated, I think that it was not well taken. The complaint alleges that on October 5, 1901, Nellie V. Sayles, plaintiff’s assignor, made and delivered to defendant' her promissory note, payable in one year from date, for the sum of $1,000, and at the same time, as collateral security for the payment of said note, duly granted and conveyed to defendant in fee simple certain land particularly described in the complaint; that on the same date defendant executed and delivered to said Sayles a defeasance agreement, set out at length in the complaint, which recites the giving by said Sayles of her promissory note and deed; admits and declares that the premises were conveyed' to defendant, and are held by him in trust and as collateral security for the payment of the note, and covenants to reconvey, the land upon payment of said note and interest. He also- covenanted that he, or his heirs or legal representatives, “ shall not do or knowingly suffer or permit any act, deed, matter or thing whereby said premises can, shall or may be in anywise impaired, injured or incumbered in titlej interest, charge, estate or otherwise, however.” It is further alleged that some time during the year 1905 the defendant, without the consent of said Sayles and without notice to her, conveyed said real estate to one Chew, and that the said Chew is now the owner and holder of said real estate ; that said real estate is fairly and reasonably worth the sum of $12,500. Assignment of the cause of action to plaintiff is alleged and demand by him. Judgment is asked for the value of the land, less the amount due on the promissory note. The case in its facts is very similar to Mooney v. Byrne (163 N. Y. 86), which is ample authority, if authority be needed, for the proposition that the deed to defendant was in fact a mortgage, and that the right to redeem rested in the debtor until foreclosure. The plaintiff, as assignee of Sayles, still has the unimpaired right, as between herself and defendant, to redeem, but the defendant by his act in conveying away the land has made actual redemption impossible, and equity, moulding its judgment according to the facts, will presume that defendant holds the value or proceeds of the land as a separate fund in his hands and will decree' that he pay to plaintiff that which represents the land. It is unnecessary to pursue the reasoning in detail since that has been so thoroughly done by Judge Vann in the case cited above. It is- true that plaintiff does not call his action one to redeem, and asks for a money judgment, but the action is in legal effect one for redemption, although under the circumstances set forth in the complaint only a money judgment can be obtained, and, .therefore, only such a judgment need be demanded. For this reason it was not necessary for plaintiff to pay or tender, as a condition to maintaining the action, the amount due upon the note. It is sufficient to ask, as he has done,-that that amount be deducted from the value of -.the land in defendant’s pjossession. The suggestion that the complaint is insufficient because it does not negative the possibility that defendant may have assigned the land subject to Sayles’ right to redeem is untenable. The allegation is that he has conveyed the property to Chew, and thht Chew is now the owner and holder of the same. That imports an absolute conveyance. If it was qualified in any way it is for the defendant to set up the qualification by- way of defense, which iie does not do in his answer. In fact he specifically admits that Chew is now the owner of the property, and attaches no qualification to the admission.

The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

MoLaughlin, Laughlin and Clarke, JJ., concurre/!.

Ingraham, J.

(concurring) :

I concur in the result, on the ground that this action should be treated as an action to redeem, triable as such. If it appears upon the trial of the action that the defendant has so disposed of the property as to make a redemption impossible the court would be authorized to compel the defendant to account for the value of the property at the time of the trial. I do not think, upon this complaint, that the action can be sustained as an action at law, but facts alleged having entitled the plaintiff to redeem it was the duty of the Trial Term to have sent the action to Special Term for trial as an action in equity. In Mooney v. Byrne (1 App. Div. 316, 320) it was held by this court that if the mortgagee had sold the property an action to redeem could not he maintained. That was reversed by the Court of Appeals (163 N. Y. 86, revg. 15 App. Div. 624) where it was held that the conveyance did not affect the right of the mortgagee to redeem and that that was a proper remedy. The same doctrine was applied by Judge Raeallo in Meehan v. Forrester (52 N. Y. 277) where it was held that the mortgagor was bound to account to the mortgagee for the value of the land at the time plaintiff’s right to such reparation was established. I think these cases hold that an action to recover damages was not maintainable and that the remedy of a mortgagee 'under these circumstances was an action to redeem.

I, therefore, concur in the reversal of this judgment.

t

MoLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Judgment reversed and new trial ordered, costs to appellant to abide event. •  