54 N.Y.S. 705 | N.Y. App. Div. | 1898
On the 14th May, 1892, Sherman H. Nickerson and Sarah A. Nickerson, his wife, the plaintiffs herein, executed to James W. Carpenter, Jr., and others, a lease of certain premises in the town of Canton for the term of 99 years, with the right to quarry marble thereon and appropriate the same to their own use; the lessees agreeing to pay a royalty of 10 cents per ton, payable quarterly. The lessees agreed that, if at any time there should be a failure on their part to account for or pay over any sum due and payable,, within 30
The appellant claims -that its existence was not proved, and therefore the judgment was erroneous. In the complaint it was alleged' flsat the appellant was a foreign corporation. This was denied in Sts- answer, but there was in the answer no affirmative allegation- that
The appellant claims that the plaintiffs had an adequate remedy at law, and therefore the action in equity was not proper. No such defense was set up by the appellant, nor was the point taken at the trial. The fact that some other defendant sets up such a defense does not help the appellant. “A defendant in an equity action cannot avail himself of the defense that an adequate remedy at law exists, unless he pleads that defense in his answer; and where the facts alleged are sufficient to entitle plaintiff to relief in some form of action, and no objection has been made by defendant in his answer or on the trial, it is too late to raise the point after judgment or upon appeal.” Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292. The plaintiffs were, we think, properly granted relief. Extrinsic evidence was necessary in order to show the right of plaintiffs to declare the termination of the lease. Paper Co. v. O’Dougherty, 81 N. Y. 482. There was a cloud upon plaintiffs’ title. The plaintiffs were in possession, as shown without objection, and so had a right to resort to equity. 1 Story, Eq. Jur. (12th Ed.) § 711a. See, also, Allegany Oil Co. v. Bradford Oil Co., 21 Hun, 26, affirmed 86 N. Y. 638.
There was no waiver by plaintiffs of the default in the payment of royalties. The appellant claims that the agreement of May 28, 1894, was, in effect, a waiver that bound the plaintiffs. It does not, however, appear that at that date the royalties now claimed by the plaintiffs were due.
The case being in equity, the defendants had an opportunity to present any facts which would entitle them to equitable consideration. None were presented. We find no good ground for reversing the judgment.
Judgment affirmed, with costs. All concur.