
    Albert G. Loomis and Charles R. Smith, Respondents, v. George Decker, Appellant, Impleaded with Others.
    
      Complaint — a party demanding legal and equitable relief cannot, after obtaining an injunction, have the action stricken from the equity calendar.
    
    The complaint in an action alleged that the plaintiffs owned certain real estate, which was conveyed to them by two of the defendants, and was in the occupation of two other defendants, all of whom were irresponsible; that a conspiracy existed between the defendants to wrongfully hold possession of the land until the expiration of the season of 1895, so that they might wrongfully cut and ■dispose of the crops, and judgment was demanded for the possession, for a temporary injunction restraining the cutting of grass or crops, and, finally, for a permanent injunction and for damages; it was further alleged that the plaintiffs had no adequate remedy at law.
    The answer of the defendant George Decker, among other things, alleged that the plaintiffs had an adequate remedy at law. •
    The plaintiffs obtained an injunction pending the action, which was noticed- for trial and placed upon the Special Term calendar as an equity action, from which, upon the plaintiffs' motion, the cause was stricken, upon the ground that the action was an action at law and not a suit in equity.
    
      Held, that the decision was erroneous;
    That the action was not merely one in ejectment, as two of the defendants were not necessary parties, except under the allegation that they were conspiring wrongfully to hold possession and cut the crops, and it was alleged that all were insolvent, and that irreparable damage would be done, and that the plaintiffs had no adequate remedy at law; ■
    That the action was clearly one demanding both legal and equitable relief, and as such was not one where a jury trial could be demanded as a matter of right;
    That the plaintiffs, having demanded equitable relief, and having obtained it in part by the temporary injunction, could not now, upon their own motion and against the protest of the defendants, remove the action to a legal forum.
    Appeal by the defendant, George Decker, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 10th day of February, 1896, striking the case from the calendar on the ground that the same is an action at law and not an action in equity.
    
      W. H. Cornwell and A. D. Wales, for the appellant.
    
      Arthur More, for the respondents.
   Herrick, J.:

The plaintiffs in their complaint allege that they are the owners of certain real estate described in the complaint; that two of the defendants conveyed the same to them, and that two others of the defendants are in the occupation of said premises; that the defendants are irresponsible and' insolvent, and that a conspiracy exists between all the. defendants to wrongfully hold and retain possession of the. premises until the expiration of the season of 1895, so as to wrongfully cut and dispose of the grass, hay and crops growing thereon; and they ask judgment for the possession of the premises, for damages for the withholding thereof, and for a temporary injunction restraining the defendants from cutting and taking the grass, hay, grain and crops during the pendency of this action, and for a permanent injunction restraining the defendants from the commission of such acts, alleging also irreparable damage, and that the plaintiffs have no adequate remedy at law.

The defendant and appellant in his answer, among other things, alleges that the plaintiffs have an adequate remedy at law to protect all their rights and interests involved in this action.

An injunction pendente lite was obtained by the • plaintiffs, whereby it was ordered that the defendants and each of them be enjoined and restrained from preventing, hindering, delaying or interfering in any manner with the plaintiffs in the cutting, harvesting, carrying away or removing the grass, hay, grain and crops now growing upon said premises.” This practically quit the plaintiffs" in possession of the premises,-and enabled them to harvest and carry away the crops thereon. ' /

The cause was noticed for trial and placed' upon the calendar of the Sqiecial Term for trial as an equity action. Upon motion of the plaintiffs’ attorney, the Sq>ecial Term granted an order striking the cause from the calendar of such court, upon the ground “that the sanie is an action at law and not an action in equity,” and from that order the defendant, G-eorgó Decker, appeals to this court.

Ordinarily the question as to whether a cause should be stricken from the calendar at any term of the court rests in the sound discretion' of the justice holding such termy and his disposition of that question will not be disturbed upon aq>peal; but if his disqiosition of the cause proceeds upon a mistaken view as to the nature of the action, which will embarrass the parties or may affect their legal rights upon the ultimate trial thereof, it then becomes a proper subject for review. '

' The plaintiffs in this action are seeking both legal and equitable relief, and the full, measure of relief prayed for by them in their complaint cannot be obtained except in a court of equity.

The action is not merely an action of ejectment. Only two of the defendants are alleged to be in possession of the premises. The other two defendants are not necessary defendants in an action of ejectment; they are made parties to the action under the allegation that a conspiracy exists between all the defendants to wrongfully hold possession of the premises, so as to wrongfully obtain and dispose of, for their own benefit, all the grass, hay and crops growing thereon.

It is alleged that all the defendants are insolvent, and that the plaintiffs will be irreparably damaged if they are permitted to proceed, and that the plaintiffs have no adequate remedy at law, and they ask .for an- injunction. It is unnecessary, it seems to me, to enter into any discussion to show that these facts, together with the relief asked, makes the case one for a court of equity.

It- is unnecessary to cite authorities to show that the plaintiffs may properly demand both legal and equitable relief in the same action, and where a “ plaintiff brings an action for both legal and equitable relief in respect to the same cause of action, the case presented is not one of right, triable by jury under the Constitution; and that the plaintiff, by such election, submits to have the issues tried by the court, or by the court with the aid of a jury, as the court, in its discretion may determine, according to the practice in equity cases.” (Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319 ; Lynch v. M. E. R. Co., 129 id. 274-288.)

Whatever may be the rule, where a defendant asserts in his answer that there is an adequate remedy at law, and that the plaintiff is not entitled to equitable relief, and demands at the trial that the action be tried as one at law, and not in equity, is of no consequence upon this appeal. The plaintiffs, by the nature of the relief asked in their complaint, have waived all right to haim their action tried as an action at law, and the defendant and appellant has assented to and asks that the" same be tried as an action in equity; and the plaintiffs having sought equitable relief, and partially Obtained it by their temporary injunction, cannot now, upon them own motion, against the protest of the appellant, remove it from an equitable to á legal forum.

The order should - be reversed, with ten dollars costs and disbursements..

All concurred.

Order reversed, with ten dollars costs and disbursements’, and motion denied, with ten dollars costs.  