The action was brought to trial before the special term, and the evidence offered by the parties, respectively, being received, the judge filed a decision, detailing briefly the evidence, reviewing its force and effect, declaring that the plaintiff had failed to satisfy him of the fraud alleged, with one exception, viz.:

He finds and holds that "Aldrich falsely represented him" (the purchaser of the one-fourth of the village land) "to be good, and for this he is liable, and the plaintiff is entitled to damages for whatever he has in that respect alone sustained; and for the purpose of ascertaining such damages, there must be a reference to Judge Griswold to take proofs and report. To this, the defendant, Aldrich, excepted.

The actual value of the said one-fourth of the village lot having been ascertained, judgment was rendered for the plaintiff for the difference between the value and the sum which was payable by the contract for the sale thereof, viz.: $113, and the costs of the action.

From that judgment the defendant appealed to the general term, and the judgment was there reversed and the plaintiffs' complaint dismissed with the costs to the defendant, but without prejudice to the right of the plaintiff to bring an action at law, if so advised.

Thereupon the plaintiff appeals to this court.

WOODRUFF, J. (Part of the opinion omitted.)

No exception was taken by the appellant to the ruling of the court in receiving or rejecting testimony. The exceptions taken to the decisions of the court, are mainly to the findings of fact.

But the exceptions may be said to present a question of law or perhaps two questions of law in this, that the appellant below excepts to the conclusion that the defendant is liable, and the plaintiff entitled to the judgment for damages sustained by reason of the false representations that Webb, the said purchaser, was good, and the award of the reference to ascertain such damages. And the ground stated in the exception is that such decision is against law and the uniform practice of courts of equity. That the justice had not jurisdiction to order such a reference; that the court, after there was an express finding that there was no ground for equitable relief, had no right to try a simple question of fraud, and assess or cause to be assessed,

the damages therefor; but that a trial of such an issue could (unless the defendant consented) only be tried by a jury.

It is clear that this action, begun and tried as an action in equity seeking upon various allegations equitable relief, and equitable relief only, viz.: the rescission of an agreement and the restoration of the parties to their former condition, has ended as an action on the case for deceit, and an award of damages therefor; which is "an action for the recovery of money only." (Code § 253.)

It cannot be said that the defendant, by going to trial before the court without objection, waived his right to object to the trial of a mere action to recover damages for deceit, without a jury; for the action was not "an action for the recovery of money only" (Code, 253), but for special equitable relief, and was therefore "triable by the court" (Code 254). He therefore had no alternative, and had no right to object to the trial of the cause by the court.

Scott v. Barlow, (24 N. Y. 40), does not conflict with this view. There the complaint was "framed for the specific performance of an agreement, and in default thereof, for compensation in damages.' The opinion pronounced in that case, held that on the face of the complaint there was no ground for specific performance, and the case in truth therefore presented a cause of action for damages, and nothing more. The defendant therefore went to trial, to meet that precise claim. Greason v. Keteltas (17 N. Y. 491), was like Scott v. Barlow in that respect.

It does not appear that the plaintiff at any time treated the action as brought to recover damages. No such idea could be suggested by the complaint; no such claim appears to have been made at the trial. The plaintiff does not, in his complaint, aver that he has sustained any damages from the representation, and it is quite obvious that he did not prove or attempt to prove his damages from this cause, else a reference to ascertain whether he had sustained any, and how much damages, would not have been necessary.

It is certain that the former practice of the court of chancery furnishes no warrant for such a proceeding. When all ground for equitable interposition failed, the bill was dismissed; and if a cause of action at law appeared to arise out of the transaction, which rested in no equitable, but simply in legal

jurisdiction, the party was left to pursue his remedy in the appropriate forum.

The code, however, in section 275, provides that, "the relief granted to a plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue.” This section relieves the plaintiff from any technical objection that he has not prayed for the precise relief to which on the trial it may seem he is entitled, but the relief to be granted must still be consistent with the case made by the complaint.

And in construing and applying this section, another, equally peremptory, must be kept in view, which rests upon the right to trial by jury, secured to the party by the constitution. By section 253, "An issue of fact, in an action for the recovery of money only, must be tried by a jury, unless a jury trial be waived," as provided in section 266.

Now it was not the intent of section 275 to violate this section, and enable a plaintiff to compel a trial by the court, by merely alleging some ground for equitable relief, and, failing in that, have a trial of issues in an action for fraud, and have an assessment of damages therefor without a jury. Nor will it warrant the court in disappointing the expectation and claims of both parties, trying the action and deciding it, so far as it is equitable in its nature, by denying the plaintiff's claim; and then selecting of facts found some which may warrant an action for damages, which the plaintiff has neither alleged nor claimed, and then order an assessment by a referee, and judgment for such damages as may be ascertained and assessed.

The defendant here had a right to a trial by a jury of the question which the judge, at special term, gave judgment against him; he had a right to know, in some stage of the action, that some claim for damages, on the ground of fraud, was made against him; he was entitled to an opportunity to object that, as to such an issue, he was entitled to a trial by a jury, and to + demand such a trial.

According to the record before us, he was not apprised of any such claim until its declaration, and its maintainance appeared in the decision of the judge; and to that he excepted, which alone he could do.

The opinion in this court, in Mann v. Fairchild (2 Keyes, 111,

et seq.,) is that "if a party brings an equitable action, even now, when the 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. (See, also, Heywood v. Buffalo, 14 N: Y. 540.)

If it were material it might be further suggested that the decision of the judge does not itself show a cause of action for which the damages could properly be awarded. His finding is simply that "Aldrich falsely represented him" (Webb, the purchaser of one of the lots) to be good; and for this he is liable, and plaintiff is entitled to judgment for whatever damages he has, in that respect, sustained." Here is no finding of any fraud; no finding that the plaintiff was deceived, nor of any intent to deceive, though deceit is of the gist of such an action, and no finding that the plaintiff sustained any damages.

It may be true that where two causes of action, one legal and one equitable in their nature, are stated in the same complaint, the court may try the cause, and if the defendant, having just opportunity, does not demand a jury for the trial of such of the issues as the code and the constitution both require to be tried by the jury he may be held to waive a trial by a jury. But he must have just opportunity before the waiver will be implied, and it is not to be overlooked that the code itself, declaring how a jury trial may be waived, does not make mere appearance such a waiver, but "Oral consent in open court, to be entered in the minutes."

If it could fairly be said that the present complaint stated two causes of action, of which one was for damage for deceit, it would have been, probably, within the power of the general term to reverse the judgment, and order the issues in that respect, to be tried by a jury. That may be done where causes of action, legal and equitable, are properly united in the same complaint.*

But I do not think that this action presents such a case, and the judgment appealed from should, therefore be affirmed with costs.

HUNT, Ch. J., MASON, JAMES and DANIELS, JJ., were for affirmance on the grounds stated in Woodruff's opinion.

*For cases dealing with the union of legal and equitable claims, see chapter III, sec. 3.

MASON, J., also thought the case came under section 171 of the code, and there was a total failure of proof under that section.

GROVER, J., thought the code authorized the uniting of legal and equitable causes of action arising out of the same transaction. In this case the general term should have ordered a new trial. The order should be affirmed as to the reversal of the judgment, and reversed so far as it ordered final judgment for the defendant.

The order was affirmed on the ground that the complaint did not state any other cause of action than the equitable one, and there was a total failure of proof as to that.

The court agreed, unanimously, that causes of action, both legal and equitable, arising out of the same transaction, may be united by proper allegations in the complaint.

Order affirmed, and judgment absolute for the defendant.*

Section 3. Special Proceedings.

The word "action," as used in the New Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.-N. Y. Civ. Proc. Sec. 3333.

Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding.-Ibid. Sec. 3334.t

BENOIST v. MURRIN.

48 Mo. 48. [1871.]

CURRIER, Judge, delivered the opinion of the court.

This was a proceeding under the statute (2 Wag. Stats. 1368, § 29), to contest the validity of a paper produced and proved in the St. Louis Probate Court as the last will and testament.

* See also Porter v. International Bridge Co., 79 N. Y. S. 434. †The Missouri Code has no corresponding provisions.