Weldon v. Brown

Appellate Division of the Supreme Court of the State of New York

Decided January 15, 1904

Appellate Division of the Supreme Court of the State of New York · decided 1904-01-15

Appeal by the plaintiff, Walter S. Weldon, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 5th day of November, 1903, granting the defendants’ motion to strike the case from the calendar of the Trial Term upon the ground that the action is in equity.

Relies on Tumbridge v. . Read

Decided 1904-01-15

Van Brunt, P. J. (dissenting) :

¶1Under the provisions of the Code (§ 968), the plaintiff was clearly entitled to attempt to try this case as an action at law. If he could not establish any claim without equitable relief, his complaint should be dismissed. (Glenn v. Lancaster, 109 N. Y. 642.)

¶2Order affirmed, with ten dollars costs and disbursements.