46 How. Pr. 1 | N.Y. Sup. Ct. | 1873
The summons in this action asks for relief. The complaint states the respective estates of the respective parties in the premises described in the complaint, and asks in its prayer for a recovery by the “ plaintiffs, and all other persons who are tenants in common with defendant, Wood, in the proportions to which they are respectively entitled, and of the money and property received by Wood as the rents, issues and profits of said premises and interest"thereon, * * * and for such other or fm'ther relief as to this court may seem meet, and that said defendant, Wood, be adjudged to pay the costs of this action.”
The referee finds the sum of money secured by the defendant Wood, and then states the respective interests of the parties, as well plaintiffs as well as some of the defendants therein, and orders judgment accordingly.
The learned counsel for the plaintiffs insists that the plaintiffs are entitled to recover costs as of course in virtue of section 304 of the Code, and quotes subdivision 4 thereof in respect to “ actions for the recovery of money.”
In Buchanan agt. Morrell (13 How., 299), it was said that the nature of the action is to be determined by the allegations of the complaint and the relief it prays for (See § 275 ; Davis agt. Landerston, 56 Barb., 480).
By the Code, the distinction between legal and equitable remedies is abolished, and a uniform course of proceeding established. See preamble of the Code of 1848, and section 1 of said act, and if a party entitles himself to any remedy, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled (Emery agt. Pease, 20 N. Y., 62; 30 Barb., 9; 40 N. Y., 504).
.The amount due in this case to each tenant or cotenant with Wood is a debt due severally to such tenant, not a
But the plaintiffs’ counsel asserts that the old action “ of account as for money had and received ” is given by the ninth section of the Revised Statutes, third volume, fifth edition, page 39.
True, that statute authorizes an action for money had and received by a tenant in common against his cotenant to render his just proportion, but the Code controls as to the form of action; besides, the complaint in this action with its prayer comes short of the old action “ of account.”
The history of that action is given McNary agt. Rawson (3 Hill, 60). Bronson, J., in that case, declares the remedy obsolete. There is less need for that form of action now that legal and equitable remedies are blended and may be had in the same court.
Assuming, therefore, that this action was not solely and specially an action for the recovery of money, and that it must be classed as an equity action in order to give effect to the scope of the complaint and its prayer, the conclusion follows that the costs were within the discretion of the referee, and inasmuch as he has not awarded costs the plaintiffs were not authorized to tax and enter them in the judgment (Staiger agt. Shultz, 3 Keyes, 614; Pratt agt. Styles, 17 How., 211; Code, § 306).
The motion must be granted without costs, as the question is novel, and without prejudice to the rights of the plaintiffs to move for directions to the referee to pass upon the question of costs.
The defendant upon serving a copy of this opinion and a proposed order may have the order settled upon two days’ notice.
