App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

$100,000, the par value of the stock, all of which was refused by defendants.

To this complaint the defendant Straus interposed a demurrer, which was overruled, and from the interlocutory judgment entered upon that decision he appeals.

The respondent states in his brief that the action is for specific performance to compel defendants to deliver the stock, or, in lieu thereof, that plaintiff may have judgment for $100,000. I think that we may take him at his word, and treat this complaint entirely from the standpoint that it is an action in equity to compel specific performance, nor do we think those words of his brief were inadvertent or misstated the fact relative to his pleading. His demand for judgment is that the defendants be ordered and decreed to deliver to the plaintiff 1,000 shares of the capital or preferred stock of the Standard Rotary Motor Company, or in lieu thereof that the plaintiff may have the sum of $100,000, the amount of the capital or preferred stock of the said corporation, as damages, which the plaintiff is entitled to receive for the withholding of said stock from him, together with such other and further judgment as may be proper. It has been held that a formal demand for relief with which the complaint concludes is not conclusive as to whether the character of the action is legal or equitable; but where the complaint sets forth facts which may support equally an action at law or in equity, its character is determined by the relief demanded. (O'Brien v. Fitzgerald, 143 N. Y. 377.)

The question before us is, then, whether upon the facts pleaded an action for specific performance for $100,000 worth of this stock will lie. It is not to be doubted that equity may decree the specific. performance of a contract of chattel property. DANFORTH, J., speaking for the court in Johnson v. Brooks (93 N. Y. 337), says: "But while it may be conceded that in general a court of equity will not take upon itself to make such decree where chattel property alone is concerned, its jurisdiction to do so is no longer to be doubted, and it is believed that no good reason exists against its exercise in any case where compensation in damages would not furnish a complete and satisfactory remedy." Jurisdiction of a court of equity to enforce specific performance of a contract relating to personal property, though rarely exercised, cannot be denied, and

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

may be exercised "where compensation in damages would not furnish a complete and satisfactory remedy." But the granting of this relief rests in the sound discretion of the court, and cannot be demanded as a right. (Matter of Argus Company, 138 N. Y. 557.) Equity will only interfere where the law affords no remedy or where compensation and damages would be difficult if not impossible, owing to the fact that "the matter was in the nature of an experiment, contracted for but not made, so that the result, of necessity, could never be known." (Williams v. Montgomery, 148 N. Y. 519, 527. See, also, Brown v. Britton, 41 App. Div. 57.) The plaintiff's complaint, however, does not allege that this stock has any peculiar value, nor that the product of the Standard Rotary Motor Company is in any such experimental stage as to render computation of the value of the stock difficult or impossible, and nowhere in the complaint does he allege the facts from which it could be inferred that he has no adequate remedy at law, nor that exact language. On the other hand, the pleading seems inferentially to allege the value of the stock to be $100,000. Without such a showing equity would not, under the decisions we have quoted, exercise its discretion to award specific performance of the agreement set out in the complaint, and without such averments, the pleading cannot be said to state a cause of action in equity for specific performance.

These conclusions lead to a reversal of the interlocutory judgment, with leave to the plaintiff to amend upon the usual terms.

In view of this disposition of the appeal from the interlocutory judgment, it becomes unnecessary for us to pass upon the appeal in the same case from the order denying the motion of the defendant Straus to make the complaint more definite and certain.

The appeal from that order should, therefore, be dismissed, without costs to either party.

GOODRICH, P. J., BARTLETT, WOODWARD and JENKS, JJ., concurred.

Interlocutory judgment reversed, with leave to the plaintiff to amend within twenty days upon payment of costs of demurrer and costs of this appeal. Appeal from order denying motion to make complaint more definite and certain dismissed, without costs of this appeal to either party.

T

SECOND DEPARTMENT, JULY TERM, 1903.

App. Div.]

JOSEPH A. BURR, Respondent, . THE UNION SURETY AND GUARANTY COMPANY, Appellant.

Reply — not compelled to an answer containing statements denying what the plaintiff must prove in order to succeed — a waiver of the requirements of a contract cannot be proved under an allegation of performance.

The complaint in an action upon a bond, given by the defendant to insure the performance of a contract between the plaintiff and a third party, alleged that the third party had failed to perform the contract and that the defendant was liable upon the bond. The complaint specifically alleged that the plaintiff had complied with all the conditions of the contract made and entered into by the defendant, upon his part to be kept and performed, and then set out the contract of guaranty in full.

The defendant's answer contained a general denial, and then set forth an allegation that it was provided in the agreement between the plaintiff and the defendant that the defendant should be notified in writing of any act on the part of the principal which would involve loss for which the defendant would be liable: that no such notice was given, and that the defendant was thereby relieved from obligation upon the bond.

It further alleged that the bond contained a provision that any action thereon should be brought within six months after the breach of the contract, and that the action was not brought within said six months.

Held, that the allegations of the answer above set forth were simply specific denials of the allegations of the complaint, supplementing the general denial incorporated in the answer;

That such allegations did not consist of new matter, and that the defendant was not entitled to require the plaintiff to serve a reply thereto; That the plaintiff, having alleged in his complaint performance of the contract made between himself and the defendant, would not be entitled to prove upon the trial a waiver by the defendant of the provisions of the contract in the particulars specifically set forth in the answer.

APPEAL by the defendant, The Union Surety and Guaranty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of April, 1903, denying the defendant's motion for an order compelling the plaintiff to reply to the affirmative defenses set up in the defendant's amended

answer.

Wilson B. Brice, for the appellant.

C. W. Wilson, Jr., and Robert H. Wilson, for the respondent.

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

HOOKER, J.: This is an appeal from an order made at Special Term, denying defendant's motion to compel plaintiff to reply to the alleged affirmative defenses set up in his amended answer. The complaint alleged that the defendant gave its bond to insure the performance of a contract of one Egenberger with the plaintiff; that Egenberger failed to perform, and the defendant is liable on its bond. The complaint specifically alleges that the plaintiff has complied with all the conditions of the contract made and entered into by the defendant herein, upon his part to be kept and performed, and then sets out the contract of guaranty in full. Defendant's answer, after stating a general denial, contains an allegation that it was provided in said agreement between it and the plaintiff that defendant should be notified in writing of any act on the part of the principal therein named, which would involve loss for which defendant would be responsible; that no such notice was given, and defendant did thereby become relieved from obligation under the bond.

In a separate paragraph the defendant alleges that it was provided in the bond that any suit at law or proceedings in equity must be brought within six months after breach of the contract; that this action was not brought within said six months, and the plaintiff is bound by the short limitation.

Section 516 of the Code, which permits a reply to be made in certain cases, provides: "Where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter." Section 500 of the Code makes provision for what an answer of the defendant must contain: First, it may contain a general or specific denial of each material allegation in the complaint controverted by the defendant, and, second, a statement of any new matter constituting a defense or counterclaim.

Inasmuch as the provisions of the defendant's obligation are explicit, it must be held, and there is no controversy upon this question, that the plaintiff must show performance of the acts he undertook in the contract to perform as a condition precedent to his maintaining the action, and his complaint alleges that he has performed all of the terms and conditions of the defendant's obligation. The separate paragraphs of the answer are no more than

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

specific denials of the allegations of the complaint supplementing the general denial also incorporated in the answer. If these por

tions of the answer are specific denials, they can in no sense be statements of any new matter, and the court is, therefore, under section 516 of the Code, without power to grant the order sought.

The defendant seems to fear that it will be surprised at the trial, and counsel urges in his brief that as to the defense of failure to notify defendant of the breach of the contract, plaintiff may claim to have sent a notice which defendant did not receive, or make claim that the defendant waived notice, and maintains that defendant must prepare itself to meet either or both of these issues. In regard to the defense of lapse of time, defendant urges that plaintiff may deny the same, or may claim that defendant waived the defense, and that the latter must, therefore, prepare for both lines of proof. The learned counsel for the defendant has evidently fallen into error in these statements in his brief, for it has been repeatedly held that an allegation of the performance of a contract will not support proof of defendant's waiver of performance. (Beecher v. Schuback, 1 App. Div. 359; Ryer v. Prudential Insurance Co., 85 id. 7.)

The order appealed from should be affirmed, with costs.

BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.

In the Matter of the Application of JAMES SWEENEY, Respondent, to Compel JEREMIAH E. BARNES, Appellant, to Turn Over to him Policy 67,028 of the Great Eastern Casualty and Indemnity Company of New York.

Attorney's lien on a life insurance

policy — proof of the attorney's employment to collect it.

An attorney who receives a policy of life insurance from the beneficiary named therein, after the insured's death, with instructions to prepare and file the proofs of death and take all necessary proceedings to collect the amount of the policy, has a lien upon the insurance policy for the value of the services rendered by him in connection therewith.

What is sufficient evidence of the attorney's employment to collect the policy, considered.