Opinion
January 24, 1949.
Action for specific performance by plaintiff, vendor, against defendant, vendee, of a contract for the sale of real property. Without deciding the issues raised by the pleadings and proof, the trial court erroneously assumed that a defense that plaintiff had an adequate remedy had been pleaded. On that assumption the complaint was dismissed with a declaration that the plaintiff had an adequate remedy at law and that there was no equitable jurisdiction. The defendant's position at trial was that plaintiff was entitled to no remedy against him. Equity has long entertained actions of this nature. ( Baumann v. Pinckney, 118 N.Y. 604.) Plaintiff's complaint should not have been dismissed without a determination on the proof of the issues involved. ( Marwede v. Commercial Hotel, 273 App. Div. 984.) The failure to make such decision prevents this court from passing on the merits and rendering final judgment. ( Skinner v. Paramount Pictures, 294 N.Y. 474.) Judgment reversed, with costs to appellant, and the action remitted to Mr. Justice CUFF, who tried the case at Special Term, to decide the case on the merits. Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.