206 A.D. 718 | N.Y. App. Div. | 1923
Judgment modified by striking therefrom the provision which awards the plaintiff damages in the alternative, and as modified affirmed, without costs. The court was without power to award plaintiff both legal and equitable relief. Legal relief in an equitable action is granted when the court finds as a fact that the defendant is unable to perform. Such relief (legal relief in an equitable action) is granted only when the complaint asks that the defendant do something which at the time of the trial he cannot do because he has parted with the title, or some reason of that character. (Saperstein v. Mechanics & Farmers Sav. Bank, 228 N. Y. 257; Pom. Spec. Perf. [2d ed.] § 294.) That situation does not exist in this case, and, therefore, plaintiff was limited to ‘the relief prayed for in the complaint. Kelly, P. J., Rich, Jaycox, Manning and Kelby, JJ., concur.