
    (9 App. Div. 120.)
    MOUBRAY v. DIECKMAN et al.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    1. Specific Performance—Recovery of Damages.
    Damages may be awarded in an action for specific performance, though the specific performance is denied.
    2. Same—Parties.
    In an action for specific performance of a contract to convey land, the person who holds the legal title is a necessary defendant, though he. has no beneficial interest.
    8. Action—Joinder of Causes.
    A complaint may ask for specific performance, or, in the event that such relief cannot be decreed, for an award of damages, or may ask for both specific performance and damages.
    Appeal from special term, Kings county.
    
      Action by Edward H. Moubray against Richard Dieckman and another for specific performance of a contract entered into between plaintiff and defendant Funston for the exchange of real estate in the city of Brooklyn, the record and title to .which was in defendant Dieckman. From an interlocutory judgment overruling defendant Dieekman’s demurrer, said defendant appeals. Affirmed.
    Argued before BROWN, P. J., and OULLEN, BARTLETT, and HATCH, JJ.
    Charles M. Stafford, for appellant.
    H. H. Snedeker, for respondent.
   PER CURIAM.

The appeal in this case is without merit, and, upon the law, does not present a debatable question. It is well settled that in an action for specific performance the specific relief may be denied, and an award of damages may be made. Haffey v. Lynch, 143 N. Y. 241, 38 N. E. 298; O’Beirne v. Bullis, 2 App. Div. 545, 38 N. Y. Supp. 4. The pleader had the clear right to ask for specific performance, or, in the event that it could not be decreed, to ask for an award of damages, or to ask for both specific performance and damages. Witherbee v. Meyer, 84 Hun, 146, 32 N. Y. Supp. 537. Dieckman was a necessary party, as he held the legal title. The complaint alleged that he was without interest in fact, but that he held the legal title for the benefit of the other defendant, who alone was beneficially interested. In order to obtain specific performance, it was absolutely necessary that Dieckman be made a party, in order that the proper conveyance might be made. In section 447, Code Civ. Proc., is found the authority for making him a party; and the fact that he might not be affected by the judgment if specific performance was denied, and damages awarded, in no way affects the question of his proper joinder as a party defendant in the action.

The judgment appealed from should be affirmed, with costs, with leave to the defendant Dieckman to answer within 20 days after the service of a copy of the judgment, on payment of costs.  