Appellate Division. court by a judge without a jury, it nevertheless might have formed the basis of an award of damages upon a trial before a judge and jury on the common-law side. The prayer of the complaint is twofold: (1) That the defendant be decreed to specifically perform the contract, and pay over the sum of $500, to the plaintiff; and (2) that the damages of the plaintiff arising out of the defendant's failure to advance the said moneys be ascertained, and that the plaintiff have judgment therefor. An error of a pleader in asking for equitable relief, when he should have concluded with a different prayer, should not be deemed fatal to his complaint. If the learned judge at special term was right in holding that the plaintiff had an adequate remedy at law, he should have transferred the cause to the jury term, instead of throwing it out of court altogether. I think there should be a new trial. Judgment reversed, and new trial granted; costs to abide the All concur. event. ADEQUATE REMEDY AT LAW AS DEFENSE TO EQUITABLE ACTION,-continued. quate remedy at law will not inure to the benefit of another defendant not pleading it, so that the latter may avail himself of that objection to the jurisdiction of the court, after judgment or on appeal. Nickerson v. Canton Marble Co., 35 App. Div. 111; 88 St. Rep. 705; 54 Supp. 705. If the defense of adequate remedy at law is not pleaded or raised upon the trial, it cannot be urged on appeal. Nickerson v. Canton Marble Co., 35 App. Div. 111; 88 St. Rep. 705; 54 Supp. 705. Buffalo Stone & Cement Co. v. Delaware L. & W. R. R. Co., 130 N. Y. 152; 29 N. E. 121. Weaver v. Haviland, 68 Hun, 376; 52 St. Rep. 311; 22 Supp. 1012. Gushee v. City of New York, 42 App. Div. 37; 92 St. Rep. 967; 58 Supp. 967. Cass v. Cass, 61 Hun, 460; 41 St. Rep. 36; 16 Supp. 229. 4. By motion, etc. when not pleaded. While it is a general rule that a defendant cannot raise the objection of adequate remedy at law, unless he has pleaded that defense, yet it would ADEQUATE REMEDY AT LAW AS DEFENSE TO EQUITABLE ACTION,-continued. seem that the court, in its discretion, may, in all cases, dismiss the complaint on that ground, although the defense was not pleaded. Metropolitan Elevated R. Co. v. Johnston, 84 Hun, 83; 65 St. Rep. 206; 32 Supp. 49. An exception to the general rule that the defense of adequate remedy at law must be pleaded exists where the complaint alleges a cause of action in equity only, but on the trial plaintiff proves merely a case for damages, as 2 plea of adequate remedy at law could not properly be interposed by answer under those circumstances. Jacobson v. Brooklyn Elevated R. Co., 22 Misc. 281; 82 St. Rep. 1072; 48 Supp. 1072. Where the relief obtainable in law is as perfect and complete as that which a court of equity can award, there is no necessity of pleading the defense of adequate remedy at law in order to make it available. Ketchum v. Depew, 81 Hun, 278; 62 St. Rep. 757; 30 Supp. 794. And the defense of adequate remedy at law need not be pleaded where there is no support for equitable relief in the facts alleged. Thomas v. The Grand View Beach R. Co., 76 Hun, 601; 58 St. Rep. 256; 28 Supp. 201. It is not too late to interpose the objection that the plaintiff has a remedy at law, upon an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Steffin v. Steffin, 4 Civ. Pro. 179. The fact that an infant's guardian ad litem omitted to raise the objection in his answer that the court had not jurisdiction because the remedy is at law will not preclude the infant from raising that point on the hearing. Bowers v. Smith, 10 Paige, 193. The objection in question cannot be raised on the trial, where it was alleged in the complaint that plaintiff had no adequate remedy at law, and that allegation was admitted in the answer. Town of Mentz v. Cook, 108 N. Y. 504; 15 N. E. 541. Likewise the objection is not available where the defendant has answered and put himself on the merits. Livingston v. Livingston, 4 Johns. Ch. 287. Le Roy v. Platt, 4 Paige, 77. Underhill v. Van Cortlandt, 2 Johns. Ch. 339. Pam v. Filmar, 54 How. Pr. 235. b. Disposition of action. 1. Direction of trial in court of law. If the case is not one properly triable in equity, it should be transferred ADEQUATE REMEDY AT LAW AS DEFENSE TO EQUITABLE ACTION, -continued. to the law court for trial before a jury, where the plaintiff requests such disposition and the defendant insists upon his right to a jury trial. Thomas v. Schumacher, 17 App. Div. 441; 79 St. Rep. 166; 45 Supp. 166. 2. Retention and granting of legal relief. There is no absolute rule of law that where damages are shown, but no right to other relief is established, the court must retain the case and award relief in legal damages. W. J. Johnston Co. v. Hunt, 66 Hun, 504; 50 St. Rep. 124; 21 Supp. 314. But where the plaintiff, at the time of the commencement of the action. was entitled to both legal and equitable relief, jurisdiction of the action will be retained, although subsequent facts and occurrences render equitable re lief unnecessary or improper. Dudley v. Congregation &c. of St. Francis, 138 N. Y. 451; 34 N. E. 281. Domschke v. Metropolitan Elevated R. Co., 74 Hun, 442; 57 St. Rep. 189; 26 Supp. 840. Barlow v. Scott, 24 N. Y. 40. Sternberger v. McGovern, 56 N. Y. 12. New York Ice Co. v. North Western Insurance Co., 23 N. Y. 357. Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc. 374; 27 Supp. 907. Thus jurisdiction of an action brought for the specific performance of a contract is properly retained to grant the plaintiff compensation in damages, where the equitable relief asked, cannot, for some reason be enforced in that particular case, although plaintiff has established his right to it. Barlow v. Scott, 24 N. Y. 40. Sternberger v. McGovern, 56 N. Y. 12. Lochman v. Meehan, 50 St. Rep. 470; 21 Supp. 389. The rule was applied in an action for a nuisance which had been discontinued pending the action. Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc. 374; 27 Supp. 907. So, in an action by an abutting owner to restrain the operation and maintenance of defendant's railroad upon a street, the court will not, upon the trial, on motion of defendant's attorney, dismiss the complaint because the plaintiff has sold his premises since the commencement of the action and therefore only legal relief can be granted. Van Allen v. New York Elevated R. Co., 144 N. Y. 174; 38 N. E. 997. And in an action for an accounting for moneys had, where the complaint states a cause of action for equitable cognizance, the fact that the accounting is rendered unnecessary by reason of defendant's failure to produce any evi ADEQUATE Remedy at Law as Defense TO EQUITABLE ACTION,-continued. dence, is not cause for dismissal on the ground that the case as proven is not one for equitable relief, and that the plaintiff has an adequate remedy at law. Moore v. Moore, 32 Misc. 68; 100 St. Rep. 167; 66 Supp. 167. The mere fact that the complaint demands wrong relief, or relief to which plaintiff is not entitled, does not warrant the dismissal thereof, where the facts show that plaintiff is entitled to damages at law. Thomas v. Schumacher, 17 App. Div. 441; 79 St. Rep. 166; 45 Supp. 166. Although the plaintiff fail by his pleadings and proofs to make a case for equitable relief, being only entitled to remedy at law, yet if the defendant does not raise the objection that the case is not one for equitable cognizance, and if plaintiff claim damages, the case may be retained to award such legal relief. Stephen v. Hughes, 22 Week. Dig. 119. 3. Dismissal of complaint. A complaint in an equitable action should be dismissed, even though the same court administer both systems of law and equity, where the plaintiff fails to maintain his action on equitable grounds, establishing instead merely a cause of action at law. Ketchum v. Depew, 81 Hun, 278; 62 St. Rep. 757; 30 Supp. 794. Thus a dismissal of the complaint is proper in an action to foreclose a mechanic's lien, where the plaintiff is not entitled to a judgment of foreclosure, because his claim cannot constitute a basis for a lien, although it may be ground for legal damages. Doll v. Coogan, 48 App. Div. 121; 96 St. Rep. 627; 62 Supp. 627. Where an action, in which the plaintiff seeks only equitable relief, is tried as an action in equity, the court, finding that the plaintiff is not entitled to any equitable relief, cannot, upon certain facts appearing upon the trial which would warrant an action for damages, but which plaintiff has neither alleged nor claimed, retain jurisdiction and award such legal relief. Bradley v. Aldrich, 40 N. Y. 504. Dudley v. Congregation &c. of St. Francis, 138 N. Y. 451; 34 N. E. 281. Wheelock v. Lee, 74 N. Y. 495. An action of a purely equitable nature cannot be retained for the sole purpose of giving damages, which the complaint does not demand. Von Beck v. Village of Rondout, 15 Abb. Pr. 48. Hawes v. Dobbs, 137 N. Y. 465; 33 N. E. 560. So, where the complaint alleges an equitable cause of action for the dissolution of a partnership and the appointment of a receiver, but the evidence presents only a cause of action for damages for a breach of contract ADEQUATE REMEDY AT LAW AS DEFENSE TO EQUITABLE ACTION,-continued for services, the court cannot give judgment for damages, or allow the complaint to be amended, but must dismiss the action. Dalton v. Vanderveer, 8 Misc. 484; 59 St. Rep. 254; 29 Supp. 342; 23 Civ. Pro. 443; 31 Abb. N. C. 430. Likewise, a dismissal of the complaint should be ordered in an action to reform a contract on the ground of mistake, where no mistake is shown, and plaintiff is not entitled to have the case retained for a judicial construction of the contract, as that is purely a legal question. Oakville Co. v. Double-Pointed Tack Co., 105 N. Y. 658; 11 N. E. 839. Such disposition should also be made of an action to set aside a deed and for an accounting of the rents and profits, where no facts are shown entitling plaintiff to equitable relief. Bockes v. Lansing, 74 N. Y. 437. In an action for the specific performance of a contract, it is proper for the court to dismiss the complaint, where the term of such contract has expired before trial, and the remedy at law still exists. Williams v. Montgomery, 148 N. Y. 519; 43 N. E. 57. The dismissal of a complaint is proper in an action to set aside an alleged fraudulent conveyance executed subsequent to the making of an agreement with the plaintiff for the sale of the same premises, and for the specific performance of such agreement, where no fraud in the conveyance in question is established, and both the grantor and grantee therein admitted, in their answers, the making of the contract with plaintiff and interposed the defense of adequate remedy at law. 'Green v. Stewart, 19 App. Div. 201; 79 St. Rep. 982; 45 Supp. 982. Where the plaintiff is only entitled to nominal damages, the court will dismiss the complaint, although the defendant has failed to plead that the plaintiff has an adequate remedy at law. Hastings v. Hastings, 27 Misc. 244; 92 St. Rep. 416; 58 Supp. 416. The court has no alternative and must dismiss a complaint, where the plaintiff, having failed to establish a case for equitable relief, nevertheless insists that the action is maintainable in equity, asks no amendment of the complaint, and does not request that the cause be sent to the law court. Skilton v. Payne, 18 Misc. 332; 76 St. Rep. 111; 42 Supp. 111. There should be a dismissal of the complaint, where the action is substantially an equity ejectment suit involving a purely legal title not coupled with some equity against the party claiming the title. Jones v. St. John, 4 Sandf. Ch. 208. It is proper for the court to dismiss a complaint in an action in equity for an ouster, which may be the subject of an action of ejectment or trespass, in which adequate relief could be obtained. Shoemaker v. Shoemaker, 11 Abb. N. C. So. |