PER CURIAM: City of Syracuse v. Hogan ( 234 N.Y. 457) is a case in which the complaint cannot be distinguished in principle from that in the present case. The majority opinion of the court contains the following: "It is suggested that the plaintiff cannot recover in this action all the relief to which it is entitled if it be held that it is in ejectment.
How far the chancellor would go in this direction was often a subject of dispute; witness the conflicting cases as to trial of title to land in an injunction suit. Roy v. Moore, 85 Conn. 159, 82 A. 233; Cardozo, J., dissenting in City of Syracuse v. Hogan, 234 N.Y. 457, 138 N.E. 406; Tide Water Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1516; 56 U. of Pa.L.Rev. 289; 32 Yale L.J. 707; Walsh, Equity, 157-163. Professor Walsh argues that this rule should be given a liberal interpretation under code pleading with consequent restriction of the jury trial right.
Under New York law, ejectment is an action to recover immediate possession of real property. City of Syracuse v. Hogan, 234 N.Y. 457, 462, 138 N.E. 406 (1923). To succeed on a claim for ejectment, plaintiff must prove legal title to the real property.
The prayer, however, does not necessarily determine the character of the claim. City of Syracuse v. Hogan, 1923, 234 N.Y. 457, 461, 138 N.E. 406; Parker State Bank v. Pennington, 8 Cir., 1925, 9 F.2d 966, 970. The gist of that claim is that defendant, by means of fraudulent representations, deceived plaintiff into inaction, thus causing the claim against Guaranty to die of limitations.
omplaint, placing the four for money damages in debt or contract at the beginning and the single one asking for specific performance under the heading "alternate" at the end, the equity action would immediately be flagged as peripheral. Obviously, "alternate" and "incidental" are not the same; in any event I would make no fetish of the use of either word when the substance to which they attach speaks for itself. Without gainsaying Kaufman's privilege to waive a jury for himself, certainly Brenner, whose pleadings asserted typical law defenses — that the contract was not authorized by the corporations, that in any event Kaufman did not comply with conditions precedent to his exercise of the option, and that therefore there was no breach of contract — could not be deprived of his own right to a jury trial merely by Kaufman's arbitrary choice of the order in which he listed and the "words, allegations or the prayer for judgment" by which he labeled the causes of action in his complaint (City of Syracuse v Hogan, 234 N.Y. 457, 461, 462-463 [McLAUGHLIN, J.]; Di Menna v Cooper Evans Co., 220 N.Y. 391, 395 [CARDOZO, J.]). Order affirmed, etc.
Of course, we are obliged to preserve inviolate "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision" (N.Y. Const., art. I, § 2). It is to this sole remaining jurisdictional distinction between law and equity that we now turn. Assuming that defendants had a constitutional right to a jury trial of the issues of fact supporting the award of exemplary damages (an assumption which is not free from uncertainty — see Lynch v. Metropolitan El. Ry. Co., 129 N.Y. 274; Jamaica Sav. Bank v. M.S. Investing Co., 274 N.Y. 215; but see Hudson v. Caryll, 44 N.Y. 553; Cogswell v. New York, N.H. H. Ry. Co., 105 N.Y. 319; City of Syracuse v. Hogan, 234 N.Y. 457), it is clear that the failure to move to separately state and number the causes of action or to demand a jury trial constituted a waiver of any such right (Civ. Prac. Act, § 425).
The Supreme Court is vested with both legal and equitable powers, but this fusion of administration did not abolish "the essential and permanent difference between legal and equitable relief. For the distinction between a judgment that the plaintiff recover land, chattels or money, and a judgment that the defendant do or refrain from doing a certain thing, is as vital and far-reaching as ever." (Ames, Lectures on Legal History and Legal Essays, 311. So, Reubens v. Joel, 13 N.Y. 488, 493; Stevens v. Mayor, 84 N.Y. 296, 304, 305; Gould v. Cayuga County Nat. Bank, 86 N.Y. 75, 83; Sadlier v. City of New York, 185 N.Y. 408, 414; Jackson v. Strong, 222 N.Y. 149, 154; City of Syracuse v. Hogan, 234 N.Y. 457.) The practice here adopted has no exact precedent in this court.
He may seek the aid of equity, and without attachment or execution, may establish his debt, whether matured or unmatured, and challenge the conveyance in the compass of a single suit. This he might do, even before the statute, if the debtor waived compliance with the preliminary conditions ( Hollins v. Brierfield Coal Iron Co., 150 U.S. 371; Matter of Metropolitan R.R. Receivership, 208 U.S. 90, 109, 110). What once he might do of favor, he now may do of right. Questions may arise hereafter as to the proper mode of trial where the debt is in dispute (cf. Broiestedt v. South Side R.R. Co., 55 N.Y. 220; Di Menna v. Cooper Evans Co., 220 N.Y. 391, 395; Syracuse v. Hogan, 234 N.Y. 457, 464; Scott v. Neely, 140 U.S. 106) or as to the proper form of judgment in the event that there are successive suits or several and competing creditors (cf. Day v. Washburn, 24 How. [U.S.] 352). The creditor who acts under section 278 is to set aside the conveyance "to the extent necessary to satisfy his claim," but when he acts under section 279, the restriction, if it exists, is implied and not expressed. The solution of these difficulties and others of like order may be postponed till they develop.
The proper remedy against one who bars another from possessing and exercising his incorporeal rights is in equity. City of Syracuse v. Hogan ( 234 N.Y. 457) does not modify this rule. It was there held that where the title to land is in question defendant has a right to a jury trial.
Frank J. Cregg, Corporation Counsel ( Frank Hopkins of counsel), for respondent. Judgment reversed and new trial granted, costs to abide event, on authority of City of Syracuse v. Hogan ( 234 N.Y. 457). Concur: HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ.