Hawes v. . Dobbs

Earl, J. We agree with the court below that the facts alleged in the complaint, proved upon the trial and found at the Special Term, do not make a case entitling the plaintiff to the equitable relief which he demands. The substance of the agreement was that the defendant Dobbs would protect the deed and mortgage given by 27iebuhr to plaintiff’s assignor. At that time Dobbs did not own the real estate, and it does not appear that it was then contemplated either by him or Hawes that he would ever become the owner thereof. He did not charge any real estate by the agreement which he made. He simply entered into a personal agreement which he was bound to perform; and the only grievance the plaintiff has against him is that he did not perform it in *470 that he did not protect the deed and mortgage, but on the-contrary instigated and aided in the foreclosure of the mortgage by which the title has in the end been placed in the defendant Bergmann. It is impossible to perceive what right or interest the plaintiff has in the real estate. By a foreclosure which is regular and binding upon all the parties thereto, whatever interest he might otherwise have had as grantee and mortgagee in the premises has been cut off, and all that is left to him growing out of the agreement made by his assignor with Dobbs is the right to pursue Dobbs by a legal action to recover the damages caused by a breach of that agreement. He did not make a case for any equitable relief, and, therefore, the trial judge committed no error in dismissing his Complaint. This is not a case where the plaintiff is defeated because, while he had a perfect right of action for equitable relief, he had also a complete remedy at law. If Iiis action had been of that nature, then within the cases of Grandin v. Le Roy (2 Paige, 509); Hawley y. Cramer (4 Cowen, 717); Truscott v. King (6 N. Y. 147); Town of Mentz v. Cook (108 id. 504); and Ostrander v. Weber (114 id. 95), he would have been entitled to maintain his action for equitable -relief because the defendants liad not set up in their answer as a defense that he had a remedy at law. Here the plaintiff is defeated, not because he had a remedy at law, but because upon the facts alleged there was no ground whatever for equitable relief. It cannot now be said that the plaintiff ought to have been awarded legal relief by way of damages, because in his complaint he prayed only for equitable relief, he brought his action to trial as an equitable action and upon the trial demanded only equitable relief. He did not demand or ask for legal relief. Under such circumstances he cannot now complain that the action was not retained so as to award any legal relief to which he might be entitled for a breach of the agreement alleged in the complaint. The judgment should be affirmed, with costs. All concur. Judgment affirmed.