Opinion
December, 1904.
Present — Van Brunt, P.J., Patterson, O'Brien, McLaughlin and Laughlin, JJ.
Decision so far modified as to reverse the judgment and order a new trial, with costs to appellant to abide event.
The plaintiffs brought this action asking for equitable relief. The case was brought on for trial at Special Term, when the plaintiffs obtained a judgment in equity rescinding the contract and for further relief. The appeal was heard and argued as an appeal from a judgment in an action in equity, and there was no suggestion before the Special Term or upon the appeal that if the plaintiffs could not sustain their judgment they desired a new trial at law. In determining the case, therefore, we allowed the judgment for the equitable relief obtained by the plaintiffs to stand, striking out the other provisions of the judgment which we thought could only be had in an action at law. Upon the motion for a reargument, the plaintiffs for the first time asked that the judgment be reversed and a new trial granted to enable them to have the legal cause of action set up in the complaint disposed of, instead of directing judgment for the plaintiffs. As the plaintiffs have failed to recover the royalties due them, and as this judgment may stand as a bar to any action brought at law to recover those royalties, we think that the decision heretofore announced should be so modified as to reverse the judgment appealed from and order a new trial, with costs to the appellant to abide the event.