which damages for the breach can be predicated; that what the profits are or will be are unknown to the plaintiffs, and that by reason thereof the plaintiffs have no adequate remedy at law in a recovery of damages for the breach; that the only remedy which will give to the plaintiffs the rights to which they are entitled is by a specific performance of the contract; that, upon the execution of the contract with the defendants, the plaintiffs agreed to sell and transfer such right to another party; and that, by reason of defendants' failure to fulfill their contract, plaintiffs are unable to fulfill their subsequent contract, in consequence of which they will be subjected to heavy damages. Prayer for relief demands a decree that the defendants be required to execute a written assignment of the subscription rights; that they be enjoined and restrained from selling or otherwise disposing of such subscription rights; that they have money judgment for the several sums of money which the defendants have received on account of such rights, and for such other and further relief as may be proper. The defendants served an answer to the complaint, and the cause thus became at issue, was placed upon the equity calendar of the court, and, coming on to be heard, the court granted a judgment of dismissal, based upon the ground that the plaintiffs had not shown themselves, by their complaint, to be entitled to equitable relief. When the action was commenced, the New York Security & Trust Company was made a party defendant, for the reason that it was constituted a depository of the funds received from the underwriting subscription rights. By stipulation the action was discontinued as to this defendant.

It is well settled that courts of equity have jurisdiction to entertain an action for and decree specific performance of a contract for the sale of a chattel or of a chose in action agreed to be transferred. Parties, however, may not demand, as matter of absolute right, specific performance of such a contract. Whether it will be granted in a given case rests in the sound discretion of the court. Such discretion will be favorably exercised when it is made to appear that compensation in damages is difficult or impossible of establishment, and the law will then be inadequate in remedy. Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57; Bateman v. Straus, 86 App. Div. 540, 83 N. Y. Supp. 785. Mere statements in the complaint that damages for the breach cannot be established, that difficulty attends upon making proof of damages sustained, and that the plaintiff will be unable to prove the sum, or does not know what such damages are, and can only have full and adequate relief by a decree of specific performance, does not make out a case entitling the party to equitable relief. The transaction, as averred, and the facts as they appear in connection with it, must be of such a character as to make it apparent to the court that the exercise of equitable jurisdiction is necessarily essential in order to afford to the party the relief to which he is entitled, and without it that he will be shorn of the benefits of his contract, or a substantial part thereof. Mere characterization of difficulty, however strong, does not present such a case. Taking the averments of this complaint as a whole, it fairly appears that the plaintiffs have an adequate remedy at law. It is not impossible-indeed, it cannot be said to be difficult-to establish the value of this contract to the plaintiffs. The amount of the sub

and 120 New York State Reporter

scription is fixed, the profits which have been derived therefrom are known, and what future profits will be derived are susceptible of proof which will approximate, at least, to the actual value of the right which the plaintiffs secured by their contract. There is no more difficulty in establishing the money value of this contract by proof than there is in the horde of cases where the value of the contract depends upon the profits to be made from a given venture. Values of this character are dealt with to an enormous extent in this commercial center. They are the subject of bargain and sale. The transaction of purchase in the present case shows that the value was known to the extent of enabling parties to agree upon terms with respect to such value. Under such circumstances, it is easy to be seen that no more difficulty attends upon proving the value of this contract than in an ordinary case where profits are involved. The subject-matter of it has been the basis of commercial transactions in this city for a number of years, in which the transactions have run from modest proportions to a magnitude which excites the wonder of the commercial world. Such being the case, it is clear that the plaintiffs, by the averments of their complaint, have not shown themselves entitled to equitable relief.

Reaching this conclusion, however, does not dispose of the present question, as the law is settled beyond peradventure that if the facts stated in the complaint show that plaintiffs are entitled to any relief, either legal or equitable, their complaint is not to be dismissed because they have not demanded the precise relief to which their averments show them entitled. Wetmore v. Porter, 92 N. Y. 76. The complaint in this case states a contract; a breach of it; that thereby plaintiffs have sustained damage; and the prayer for relief, to a limited extent, is for money damages suffered on account of the breach, and for such other relief as may be just. We have no difficulty, therefore, in spelling out from this complaint facts which, taken as true, clearly establish the plaintiffs' right to recover money damages in an action at law; and, this being true, we are not able to see upon what ground the plaintiffs can be thrown out of court altogether. There has been some confusion in the cases regarding the question as to whether, when equitable relief is denied, the action should be retained as one at law, and the rights of the parties adjusted in that tribunal. It has been held by this court that, where a demurrer was interposed to a complaint framed in equity, such demurrer would be sustained, even though it might upon some theory be upheld as stating a cause of action at law. Black v. Vanderbilt, 70 App. Div. 16, 74 N. Y. Supp. 1095. This rule was questioned in the Second Department in Squiers v. Thompson, 73 App. Div. 552, 76 N. Y. Supp. 734, and this case was affirmed on appeal without opinion. 172 N. Y. 652, 65 N. E. 1122. Therein, however, the complaint was held to be one proper for equitable cognizance. Consequently it was not essential to a determination therein to consider whether the rule announced in Black v. Vanderbilt was correct or not, as it was not necessarily involved therein. The discussion in Squiers v. Thompson also tends further to breed confusion by an intimation therein that the case of Cody v. First Nat. Bank, 63 App. Div. 199, 71 N. Y. Supp. 277, decided by this court, was in conflict with Parker v. Pullman, 36 App. Div. 208, 56 N. Y. Supp. 734. A cur

sory examination of these cases shows that there was no conflict between them, although the learned presiding justice who wrote in Squiers v. Thompson may have thought there was. In Parker v. Pullman, supra, it was held that the complaint there under consideration stated an equitable cause of action, and it was upheld as such. In Cody v. First Nat. Bank, supra, the cause of action was purely legal, and there was no demand for equitable relief in any form. On the contrary, the demand was for specific relief in money damages, and the pleading was framed wholly with respect to such relief. The action was in conversion, and it was held that as, by the averments of the complaint, it appeared that the plaintiff was not the owner of the property, or entitled to its possession, at the time of the alleged conversion, the action could not be maintained, and the decision was placed expressly upon that ground. There was therefore scarcely a resemblance between these two cases. But whatever may be the rule where a demurrer is interposed to such a complaint, it has not been seriously questioned, so far as we are aware, that, where the parties have joined issue by the service of an answer and gone to trial, the complaint will be dismissed because the party does not show himself entitled to equitable relief, when the averments of his complaint show him entitled to legal relief. In Black v. Vanderbilt, supra, such rule was recognized in the prevailing opinion, for, in speaking upon such subject, Mr. Justice O'Brien said, "This latter proposition for which appellant contends has been applied in cases where an answer has been interposed, and thereafter the sufficiency of the complaint was questioned." Such rule was expressly announced in Ashley v. Lehmann, 54 App. Div. 45, 66 N. Y. Supp. 299, and is supported in Wheelock v. Lee, 74 N. Y. 495, and in Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143, 62 N. E. 167. This court, in Chinchin v. Katzman (not yet officially reported) 85 N. Y. Supp. 626, has announced in specific terms the same rule of law. It follows from these views that the court fell into error in dismissing the complaint.,

The judgment should therefore be reversed, and the action placed upon the calendar for the trial of issues by a jury for disposition; costs of this appeal to the appellant to abide the event.

MCLAUGHLIN, J., concurs. LAUGHLIN, J., concurs in result. VAN BRUNT, P. J., and INGRAHAM, J., dissent.

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MEMORANDUM DECISIONS.

ABELLO, Respondent, v. PEEKSKILL | for new trial granted, with costs to the defendLIGHTING & R. CO., Appellant. (Supreme ant to abide event, upon questions of law only; Court, Appellate Division, Second Department. the facts having been examined, and no error January 29, 1904.) Action by Mary Abello found therein." See 83 N. Y. Supp. 238. against the Peekskill Lighting & Railroad Company.

PER CURIAM. We think that the defendant, by serving an answer, has waived the right to examine the plaintiff for the purpose of enabling it to plead. Motion to dismiss appeal granted, without costs.

ADOLFF, Appellant, v. MOLIA, Respondent. (Supreme Court, Appellate Term. January 25, 1904.) Action by August Adolff against Louis, Molia. From a judgment of the Municipal Court for defendant, plaintiff appeals. Affirmed. Lewkowitz & Schaap, for appellant. G. L. F. Rohan, for respondent.

DAVIS, J. The action is brought to recover a balance of $124.09 claimed to be due for work, labor, and services, and materials furnished. The answer was in effect a general denial, and contained a counterclaim for $225 for breach of contract and improper performance of the work. The questions litigated were questions purely of fact, as to which there was conflict ing evidence. There was sufficient evidence to sustain the decision of the Justice presiding at the trial below, and I see no reason why the judgment should be interfered with. Judgment affirmed, with costs. All concur.

ARTHUR v. SIRE. (Supreme Court, Appellate Division, First Department. January 22, 1904.) Action by Daniel V. Arthur against Henry B. Sire. No opinion. Motion denied, with $10 costs.

In re ATWOOD et al. (Supreme Court, Appellate Division, First Department. January 22, 1904.) In the matter of Orlo Atwood and others. T. H. Rothwell, for appellant. W. E. S. Griswold, for respondent. No opinion. Decree affirmed, with costs.

AUGSBURY, Appellant, v. SHURTLIFF, Respondent. (Supreme Court, Appellate Di vision, Fourth Department. January 29, 1904.) Action by David D. Augsbury, as administrator, etc., against Loren F. Shurtliff. No opinion. Judgment and order affirmed, with costs.

BALSAM, Appellant, v. PAIN MFG. Co. et al., Respondents. (Supreme Court, Appellate Division, Second Department. March 4, 1904) Action by George Balsam, an infant, by Philip Balsam, his guardian ad litem, against the Pain Manufacturing Company, William R. Hearst, and the city of New York. No opinion. Order affirmed by default, with $10 costs and disbursements.

ALBANY COUNTY BANK, Respondent, v. PEOPLE'S CO-OPERATIVE ICE CO., Appellant. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) Action by the Albany County Bank against the Peo-spondents. (Supreme Court. Appellate Division, ple's Co-Operative Ice Company.

PER CURIAM. Judgment and order reversed and new trial granted with costs to appellant to abide event, on opinion in Albany County Bank v. People's Co-Operative Ice Co., 86 N. Y. Supp. 773.

CHESTER, J., dissents.

ANNEMAN v. HILTON et al. (Supreme Court, Appellate Division, First Department. February 11, 1904.) Action by Charles E. Anneman against Henry G. Hilton and another. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs.

APPEL v. ETNA LIFE INS. CO. (Supreme Court, Appellate Division, Fourth Department. October Term, 1903.) Action by Amelia M. Appel, as administratrix, etc., against the Etna Life Insurance Company.

PER CURIAM. Motion to amend decision granted, and decision amended, so as to read: 'Defendant's exceptions sustained, and motion

BARNARD, Appellant, v. BUMP et al., Re

Third Department. March 2, 1904.) Action by and Frank S. Bump. No opinion. Judgment William H. Barnard against Austin S. Bump affirmed, with costs.

BARRETT CHEMICAL CO., Appellant, v. TERN, Respondent. (Supreme Court, Appelite Division, First Department. February 19, 904.) Action by the Barrett Chemical Comany against Julius Stern. F. Forbes, for apellant. A. Furber, for respondent. No opinon. Appeal from order denying resettlement ismissed, with $10 costs and disbursements.

BATTY, Respondent, v. NIAGARA FALLS IYDRAULIC POWER CO., Appellant. (Sureme Court, Appellate Division, Fourth Deartment. March 8, 1904.) Action by Jennie .. Batty, as administratrix, against the Niagara 'alls Hydraulic Power Co. No opinion. Orer affirmed, without costs.

pellant Edge, and $10 costs and disbursements to respondent machine company, against plaintiff. MCLAUGHLIN and HATCH, JJ., dissent from affirmance of the order as to the defendant machine company.

BESANT, Appellant, v. GLENS FALLS INS. CO., Respondent. (Supreme Court, Appellate Division, Third Department. March 2, 1904.) Action by Joseph B. Besant against the Glens Falls Insurance Company.

PER CURIAM. Order affirmed, with $10 costs and disbursements.

HOUGHTON, J., dissents.

BINGER, Respondent, v. FEUERLICH et al., Appellants. (Supreme Court, Appellate Term, BEATTYS, Respondent, v. WILEY, Appel- January 25, 1904.) Action by Arnold Binger int (two cases). (Supreme Court, Appellate against Max A. Feuerlich and another. From Division, Second Department. January 22, a judgment of the Municipal Court for plaintiff, 904.) Actions by George D. Beattys as trus- defendants appeal. Modified. Alexander Rosee, etc., against Wilfrid Wiley and against Mil-enbaum, for appellants. Kantrowitz & Esberg, or Wiley. No opinion. Motions denied. for respondent.

MacLEAN, J. Upon an order from the BEETHEM, Respondent, v. INTERURBAN plaintiff, who was to furnish card paper and T. RY. CO., Appellant. (Supreme Court, Ap-plates, the defendants undertook to print 5.000 ellant Term, January 19, 1904.) Action by advertising cards for $20, and certain tickets Villiam Beethem against the Interurban Street for $5. Respecting the latter there was no disailway Company. From a judgment of the pute. Of the cards, 1,696 were "printed right," [unicipal Court for plaintiff, defendant ap- and accepted. After looking at a few of the eals. Reversed. Henry A. Robinson (William cards not delivered, the plaintiff refused to take 1. Weaver, of counsel), for appellant. Harri- any of those left at the printers', one of whom on, Seasongood & Edwards, for respondent. testifies they numbered about 1,800, of which were good about two-thirds or 1,200, thus makGREENBAUM, J. This case was before his court on a former appeal. 86 N. Y. Supp. been, 2,896, amounting, at the price agreed upon ing of those accepted, and which should have 30. The plaintiff's proofs fall short from showfor the lot, to $11.58, and making, with the $5 ig in what respects the defendant's motorman as negligent, or that the plaintiff was himself the defendants admitted upon the trial, a total for the tickets and $41.05, a counterclaim of ee from negligence. The witnesses called by for the defendants of $57.63, from which should laintiff corroborate all the defendant's witness- be deducted the value of a plate, retained as for s as to the position plaintiff was found in imediately after the accident, indicating that he a lien, $S, and the worth of the card paper furnished, but of which the plaintiff did not have as struck by the easterly side of the car-a the benefit, viz., the 600 cards admittedly poor, iew entirely at variance with the plaintiff's ver- and the remainder, not definitely accounted for on that he was working to the west of the south by either side, of 1,504 cards, 2.104 in all, or ound tracks when he was struck. The over-1.052 whole sheets at 32 cents, $36.82, together helming evidence in the case as to the position making $44.82 to the credit of the plaintiff, f the plaintiff when struck forcibly impresses leaving a balance of $12.81 to be recovered by ne with the improbability of the accident hav- the defendants, with costs, instead of $73.68, ig happened as plaintiff now contends. The with costs, erroneously awarded in judgment to idgment must be reversed, and a new trial the plaintiff, in part for the outlay in having rdered, with costs to appellant to abide the the work done elsewhere, for which outlay, vent. All concur. under the circumstances proven, and in the action brought on oral pleadings for "breach of contract," he could not recover. The judgment should be modified by awarding the defendants judgment on their counterclaim as increased and diminished by the items stated above, with costs and disbursements in the Municipal Court and upon this appeal. Judgment modified, by awarding the defendants judgment for $12.81, besides costs and disbursements in the Municipal Court and upon this appeal, and, as so modified, affirmed.

BELLEGARDE v. UNION BAG & PAPER O. (Supreme Court, Appellant Division, Third Department. March 2, 1904.) Action by John Bellegarde against the Union Bag & Paper Company. No opinion. Motion for leave to go → Court of Appeals granted.

BENJAMIN v. EDGE et al. (Supreme Court, ppellate Division, First Department. Feb uary 5, 1904.) Action by Alfred N. Benjamin gainst William Edge and the Williams Wire Hinging Machine Company. L. J. Hunt, for ppellant. H. B. Bradbury, for respondent. PER CURIAM. Order affirmed, with $10 osts and disbursements to plaintiff against ap

FREEDMAN, P. J., and DAVID, J., concur in result.

BINSWANGER, Respondent, V. NEW YORK CENT. & H. R. R. CO., Appellant. (Su