125 N.Y.S. 1071 | N.Y. App. Div. | 1910
This is an appeal from an interlocutory judgment overruling a demurrer to the complaint, the point of the demurrer being that the facts, set forth in the complaint will not sustain a suit in equity, but that plaintiff’s remedy lies in an action at law. ' It is not questioned by respondent that she seeks in this action only equitable. relief, nor that the demurrer should' have been sustained If it appears upon the face of the complaint that she has an adequate remedy at law. (Moore v. Coyne, 113 App. Div. 52.) “ ‘ If a party. brings an equitable action evén now, when the same court administers both systems of law and equity, the party must maintain his equitable action upon equitable grounds or fail, even though he may prove a good cause of action at law on the trial. ’ ” (Loeb v. Supreme Lodge, Royal Arcanum, 198 N. Y. 187.)
The complaint alleges that plaintiff and defendant,, her husband, are tenants by the entirety of certain real estate in the county of Westchester; that defendant is now and lias been since September 26, 1907, in. possession of the property and" has collected all the issues and profits of the same; that he has not paid such issues and profits over to plaintiff; that there are taxes due and unpaid upon said property. The prayer is for an accounting in equity and that defendant be decreed to pay over such sum as may be found due to plaintiff.
The interlocutory judgment must be reversed, with costs and disbursements, and the demurrer sustained, with costs, with leave to plaintiff to amend her complaint within twenty days upon payment of all costs.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.