
    Frank M. Ashley, Appellant, v. Charles F. Lehmann, Respondent.
    
      Action to compel the specific performance of a contract to advance momy to a partnership — a dismissal of the complaint, because the plaintiff’s remedy was at law, is improper — effect of a prayer for equitable relief.
    
    The complaint in an action alleged that the plaintiff and the defendant entered into an agreement for the manufacture and sale of ink wells, by which the plaintiff was to conduct the business and the defendant was to advance such money as should, from time to time, be necessary “to manufacture said ink wells, protect the same by patents, market the said wells, and otherwise place the said business on a paying basis, said amount not to exceed the sum of three thousand ($3,000) dollars.” It further alleged' that the business required an advance of $500 from the defendant, and that although, the plaintiff duly demanded that sum from the defendant, the latter refused to pay it. The relief demanded was that the defendant be decreed to specifically perform the contract and pay the sum of $500 to the plaintiff, and that the plaintiff’s damages arising out of the defendant's failure to advance the said money be ascertained and the plaintiff have judgment therefor.
    
      Held, that if the plaintiff had an adequate remedy at law, the judge presiding at the Special Term should have transferred the action to the Trial Term instead of directing a dismissal of the complaint upon a motion therefor made before any evidence had been given;
    That an error of a pleader in asking for equitable relief, when he should have concluded with a different prayer, should not be deemed fatal, to the pleading.
    Appeal by the plaintiff, Frank M. Ashley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of February^ 1900, as amended by an order entered in said clerk’s office on the 26th day of February, 1900, upon the dismissal of" the complaint at the commencement of a trial at the Kings County Special Term, upon the ground that a court of equity had no jurisdiction of the cause of action and that the plaintiff’s remedy was in a court of law.
    
      George Tiffany, for the appellant.
    
      Frederick E. Crane, for the respondent.
   Willard Bartlett, J.:

When this case came on for trial before the Special Term in Kings county, the defendant, without any evidence having been given, moved for a dismissal of the complaint upon the ground “ that it clearly appeared from the complaint that a court of equity had no jurisdiction, but that the plaintiff’s remedy was in a court of law, and that he had an adequate remedy at-law and no sufficient reason for seeking relief in a court of equity.” The court granted the motion and dismissed the complaint upon the grounds thus stated.

It seems to me that the motion to dismiss was equivalent to a demurrer, and that it should not have been granted' unless the complaint is demurrable, upon the ground that it does not State facts sufficient to constitute a cause of action.

I do -not think it can thus be condemned.

The action is based on an agreement which contemplates a joint undertaking by the j>arties in the manufacture and sale of ink wells.' The plaintiff was to conduct the business. The defendant was to pay and advance such money as should, from time to time, be neces-r sary to manufacture said ink wells, protect the same by patents, market the said wells, and otherwise place the said business on a paying basis, said amount not to exceed the sum of three thousand ($3,000) dollars.”

The -3d article of the. complaint alleges that the exigencies and needs of said business, on .August 19, 1899, required an advance of $500 from the defendant in order to enable the plaintiff successfully to carry on the business and maintain the same in good credit and standing, and that the plaintiff duly demanded that sum from the defendant who refused to pay it and has not paid it.

This breach of the contract, if proved, would entitle the plaintiff to judicial redress in some form. If it did not give rise to an equitable cause of action cognizable on the equity side of the court, by a judge without a jury, it nevertheless might have formed the basis of an award of damages upon a trial before a judge and jury on the common-law side.

The prayer of the complaint is two-fold: (1) That the defendant be decreed to specifically perform the contract and pay over the sum of $500 to the plaintiff; and (2) that the damages of the plaintiff arising out. of the defendant’s failure to advance the said moneys be ascertained and that the plaintiff have judgment therefor.

An error of a pleader in asking for equitable relief - when he should have concluded with a different prayer should not be deemed fatal" to his complaint. If the learned judge at Special Term was right in holding that the plaintiff had an adequate remedy at law, he should have transferred the cause to the jury term instead of throwing it out of court altogether.

I think there should be a new trial.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  