Opinion
November 13, 1942.
Appeal from Supreme Court, New York County, SCHMUCK, J.
E. Philip Liflander and Herbert Stern for appellants.
Meyer D. Siegel for respondent.
Where a motion to dismiss a complaint is made before answer, at which time the adequacy of plaintiff's remedy at law is established, a complaint framed in equity, and asking only equitable relief, must be dismissed, for no action would lie in equity under such circumstances. ( Terner v. Glickstein Terner, Inc., 283 N.Y. 299.) Here the motion was for judgment on the pleadings, consisting of a complaint, answer and bill of particulars. The complaint purported to set forth four causes of action. Equitable relief was prayed for. The complaint omitted any allegation that plaintiff had no adequate remedy at law, nor did the answer plead the existence of such legal remedy. The adequacy of legal remedy should be raised by pleading, in the absence of preliminary motion raising that issue. (3 Wait's New York Practice, [4th ed.], p. 499, ch. VI, art. IV, § 6.) Concededly the present complaint sufficiently alleges one or more causes of action at law. Judgment on the pleadings was properly denied under these circumstances. ( Hirsh v. Central Hanover Bank Trust Co., 251 App. Div. 24.)
The order should be affirmed with twenty dollars costs and disbursements.
MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ., concur.
Order unanimously affirmed with twenty dollars costs and disbursements to the respondent.