
    Simon Butts, App’lt, v. Addison B. Fillmore, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    New tbiae—Code Civ. Pro., § 1525.
    A party by bringing an action in equity to set aside a deed instead of an action of ejectment, thereby waives any right to a new trial under the provisions of § 1525 of the Code. ■
    Appeal from a judgment of the supreme court entered in the Monroe county clerk’s office on the 11th. day of December, 1890, upon the decision of the trial court, equity term, dismissing the plaintiff’s complaint, with costs, and from an order denying a motion for a new trial.
    
      John Desmond, for app’lt; George D. Forsyth, for resp’t.
   Lewis, J.

The action was brought to set aside a deed of conveyance from Christian Butts, deceased, to the defendant, of twenty acres of land in the town of Greece, Monroe county, New York, on the ground that the conveyance was obtained by undue influence, and on the further ground that the grantor was at the time he executed the deed so infirm in mind as not to be competent to make the deed.

The plaintiff claimed in his complaint to be the owner of the premises as a devisee under the will of Mr. Fillmore, and demanded judgment that the deed to the defendant be adjudged void and of no effect, and awarding the possession of the land to him, with damages for the withholding thereof from him by the defendant, and for such other or further relief as-to the court shall seem just. The action was tried at a Monroe equity term, and upon abundant evidence to sustain the findings the trial court found against the plaintiff upon all the1 issues presented by the pleadings, and directed judgment against, plaintiff for the costs of the action. Judgment was entered, the plaintiff paid the defendant’s costs, and thereupon moved the court for a new trial under § 1525 oE the Code of Civil Procedure, which provides for a new trial in actions to recover the possession of real property upon payment of the costs of the action. The motion was denied. The plaintiff appealed to this court.

The purpose of the action, as we have seen, was to obtain the judgment of the court adjudging the deed executed by the deceased to the defendant null and void,' for' the reasons above stated; and for the possession of the premises. The plaintiff’s right to the possession of the land depended upon the result of his efforts to have the deed adjudged to be void. Failing in that, he had no cause of action against the defendant. He could have brought' his action, if he had so desired, in the form of ejectment, but he elected to so frame his complaint as to' make it an equity action. It was tried by bis consent at an equity term before the court without a jury. Having selected that court as the proper tribunal to adjudicate upon his cause, he must he held to have waived any right to relief under the provisions of the Code relating to new trials in actions for the recovery of the possession of real property. Shumway v. Shumway, 42 N. Y., 143.

The judgment and order appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  