18 N.Y.S. 123 | New York Court of Common Pleas | 1892
This action was brought in equity to have a certain agreement between Gilbert R. Hawes, plaintiff’s assignor, and Charles G. Dobbs, one of the defendants, adjudged binding on one Herman A. Bergman, another defendant; to have a deed from William H. Niebuhr, who was not a party to the action, to Agnes E. Dobbs, another defendant, declared to be solely for the benefit of Charles G. Dobbs; for a judgment declaring that the interest of Charles G. Dobbs, as mortgagee of the premises mentioned in the complaint, was merged into that of owner of an undivided three-fourths of such premises; to adjudge that the liens of plaintiff’s deed and mortgage on the said premises were superior in equity to the rights of any of the defendants in the premises; and also for a judgment declaring that the plaintiff was the owner of an undivided one-fourth part of those premises, and that he had a valid lien on a portion of the premises to the extent of $5,500, and interest. The complaint also contained a general prayer for such other or further relief as to the court might seem just and equitable. From the evidence and the findings of the court it appears that the premises in question were conveyed by the defendant Charles G. Dobbs to William H. Niebuhr, on or about the 28th June, 1887, and at the same time what is known as a “ builder’s loan contract” was executed between the parties; and that, on the 5th October of the same year, Niebuhr conveyed to Gilbert R. Hawes, plaintiff’s assignor, one undivided fourth part of the premises, and that the consideration for such deed was moneys advanced to Niebuhr by Gilbert R. Hawes, to be used upon the erection of the buildings on the premises in question, under an agreement and understanding between Charles G. Dobbs and Niebuhr and
This case is not like those cited by appellant’s counsel, where it has been held that, where the court once obtains jurisdiction, it will proceed and grant relief for the purposes of account, or otherwise, because the complaint presented a purely equitable cause of action, and, on the trial, the plaintiff utterly failed to prove his cause in equity. This being so, as well might a court, of equity be compelled to try an action upon a promissory note, provided the-con-plaint was so framed as to present a case for equitable relief, when in