Argued February 2, 1881
Decided March 1, 1881
T.M. Tyng for appellant. Francis Lynde Stetson for respondent.
The names of actions no longer exist, but we retain in fact the action at law and the suit in equity. The pleader need not declare that his complaint is in either; it is only necessary that it should contain facts constituting a cause of action, and if these facts are such as at the common law his client would have been entitled to judgment, he will under the Code obtain it. If on the other hand they establish a title to some equitable interposition or aid from the court, it will be given by judgment in the same manner as it would formerly have been granted by decree. So the complaint may be framed with a double aspect ( Wheelock v. Lee, 74 N.Y. 500; Hale v. Omaha Nat. Bank, 49 id. 626; Bradley v. Aldrich, 40 id. 512; Sternberger v. McGovern, 56 id. 12; Margraf v. Muir 57 id. 159); but in every case the judgment sought must be warranted by the facts stated. For as was said in Dobson v. Pearce ( 12 N.Y. 156), "the question is, ought the plaintiff to recover," or as in Crary v. Goodman (id. 266), "whether according to the whole law of the land applicable to the case the plaintiff makes out the right which he seeks to establish?" It is only when he fails in doing this that he can be treated as one making a false clamor. But, notwithstanding the liberality of the law which permits this construction, the plaintiff can have no relief that is not "consistent with the case made by his complaint and embraced within the issue." (Code, § 275.) He must, therefore, establish his allegations ( Salter v. Ham, 31 N.Y. 321; Bradley v. Aldrich, 40 id. 504; Heywood v. Buffalo, 14 id. 540), and if they warrant legal relief only, he cannot have equitable relief upon the evidence. He must bring his case within the allegations as well as within the proof. ( Bradley v. Aldrich, 40 N.Y. 504; Arnold v. Angell, 62 id. 508; People's Bank v. Mitchell, 73 id. 415.) And, notwithstanding the very learned and extended arguments advanced upon this appeal, we think the case must be decided upon the application of these rules. First, it is quite evident that the plaintiff at the outset, and before commencing his action, conceived himself entitled to damages and nothing else. For in compliance with the statute in that respect he gave notice of his claim to the comptroller and demanded "payment of the sum of $200,000 as damages for the fraudulent obtaining and using of the deed or release," mentioned in the complaint. This being refused and action commenced, the allegations in the complaint are to the same effect. They describe the property conveyed by the deed and characterizing the application for it as fraudulent, declare that at that time the defendant was informed the property belonged to Miner; that he was ignorant thereof, and that the defendant fraudulently and with intent to deceive and defraud the plaintiff out of his aforesaid property fraudulently kept concealed from the plaintiff "the fact of the opening of Seventy-eighth street, and also the fact of the closing of" a certain other street (both material to his title); that at the same time it falsely informed and represented to him that he had some slight claim to the said portion of said street, but that it was a mere equitable claim and of no value; that misled, deceived and induced by such fraudulent concealment, and such false and fraudulent statements and misrepresentations as to the said property, his interest therein and the value thereof, and believing the same to be true and relying thereon, and without consideration, he executed and delivered to the defendant the said deed or release; that his interest so conveyed was worth $200,000, and for that sum judgment is demanded. If these allegations were admitted to be true, or the defendant failed to answer, the plaintiff would be entitled to recover, and the only proceeding consequent on such admission would be an assessment of damages. But so far from that, the defendant answered and by denial took issue upon the averments. For the trial of the issues so formed a jury was the appropriate tribunal, and we find that it was resorted to. (5 J. S. 171.) Except by consent of both parties it must have been again sought; but such consent was given and we have now before us the proceedings upon a trial before a referee. His decision is to be treated like the verdict of a jury, and upon every issue he has found in favor of the defendant. He finds there was no fraud practiced, no fraudulent contrivance or concealment, no fraudulent intent on the part of the defendant or its agents. Besides this, actual good faith is established.
The whole assumed cause of action is, therefore, taken away. ( Miller v. Barber, 66 N.Y. 558; Arnold v. Angell, 62 id. 508; Long v. Warren, 68 id. 426; Thomas v. Beebe, 25 id. 244.) Indeed it is shown to have had no existence. The General Term, by whom the evidence is weighed and examined, have approved the findings of the referee, and the judgment directed by him has been affirmed. These findings having been made upon conflicting evidence, or evidence altogether in favor of the defendant, are conclusive upon this court. ( Quincey v. White, 63 N.Y. 370; Leonard v. N.Y., etc., Tel. Co., 41 id. 544, 568; Stilwell v. Mutual Life Ins. Co., 72 id. 385.) Nor do we find that any error was committed by the referee in refusing additional findings at the request of the plaintiff. The questions presented were either included in the findings already made, or depended upon inferences to be drawn from evidence not conclusive, and in neither case can those exceptions be sustained. ( Andrews v. Raymond, 58 N.Y. 676.) Notwithstanding this brief statement of our conclusion, we have been compelled, in arriving at it, to examine the entire evidence and the elaborate and interesting briefs of counsel; and in view of the appellant's position, that the case presented matters of equitable cognizance, it may be not improper to state that it seems to us far from clear that the circumstances are such as to require the strictness of the common law to be abated, or that upon pleadings, however framed, the plaintiff could recover. There was actual possession of the land by other parties, and as it now seems, equities affecting the conscience of the intestate, if they did not the title, and these circumstances may have led to that prompt and almost eager compliance with the defendant's application, which is now relied upon as the result of fraud or imbecility. But without regard to such considerations and upon the ground before stated, we think that the appeal is not sustained, and that the judgment should be affirmed.