45 N.Y.S. 982 | N.Y. App. Div. | 1897
This suit was brought on the equity side of the court, the complaint alleging an agreement on the part, of the defendant John Stewart to convey to the plaintiff certain premises therein described, and a'subsequent conveyance- of .the same premises to the defendant Weiss. It charged that the conveyance from Stewart to Weiss-was-fraudulent, and'the relief demanded was, that the conveyance from Stewart to Weiss beset aside as fraudulent and void as against the plaintiff;- and the defendant Stewart he compelled specifically to. perform his agreement with the plaintiff, and that, the plaintiff have the costs and- disbursements' -of the action,. and, such, other and further relief as to the court should seem; just. '
The defendants Stewart and Weiss answered separately, but each of them admitted the conveyance from Stewart to Weiss, alleging that the same was for a.valuable consideration; and further alleging that -the plaintiff had an adequate remedy at' law for damages against the defendant Stewart, “ who is financially solvent and able to respond in damages for the breach of any contract to which he is a party;. and that this plaintiff cannot maintain this action in equity by reason of such facts,” and a dismissal of -the complaint was demanded, with costs.
Upon the- trial, the plaintiff failed to establish a right to have the conveyance from Stewart to Weiss set aside .as fraudulent, .and the court promptly dismissed the complaint .as. to Weiss.
When then the plaintiff had rested without establishing any right to relief on the equity side of the court, and it became apparent that the only remedy he ever had was at law, it became the duty of the court, in view of the answer of defendants^ to have dismissed the complaint as to the defendant Stewart as well as to the defendant Weiss. (Bradley v. Aldrich, 40 N. Y. 504; Ketchum v. Depew, 81 Hun, 278.)
The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
Van Brunt, P. J,, Rumsey, O’Brien and Ingraham, JJ.,. concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.