Marwede v. Commercial Hotel, Inc.

In an action for specific performance of a contract described as one of employment, for salary, damages, and other relief, judgment, rendered after trial by the court without a jury, declaring that the plaintiff has an adequate remedy at law, and dismissing the complaint and counterclaim without prejudice, reversed on.the law and the facts; with costs to appellant, and the action remitted to Hr. Justice Hill, who tried the action at Special Term, to decide the case on the merits. The proof establishes that the shares of stock, the delivery of which plaintiff seeks to compel, are of such nature as to warrant the court, on proper findings, to order their delivery, rather than to hol'd that a recovery of their value would provide an adequate remedy. Hence, the proof established a case for equitable jurisdiction. In such situation the court of equity should retain control of the cause generally and award complete relief, even though the rights of the parties are legal and the remedy that of a. court of law. (Jamaica Sav. Bank, v. M. S. Investing Co., 274 N. Y. 215, 220.) Inasmuch as the merits of the case have not been passed upon by the trial court, this court does not pass upon the merits and render final judgment, as if acting under subdivision 2 of section 584 of the Civil Practice Act. (Skinner v. Paramount Pictures, 294 N. Y. 474.) Lewis, P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur.