Regina A. Niehaus, Respondent, v. Charles Henry Niehaus, Appellant

Regina A. Niehaus, Respondent, v. Charles Henry Niehaus, Appellant. First Department, December 2, 1910. Pleading— demurrer to complaint in equity — adequate remedy at law — husband and wife — rights as tenants by the entirety—appropriation of rents and profits by one of two tenants by the entirety — when suit in equity does not lie. A demurrer to the complaint in a suit in equity will be sustained if it appear upon the face of the pleading that there is an adequate remedy at law. Although the same court administers law’and equity, one who sues in equity must maintain his action upon equitable grounds or fail, even though he may prove a'cause at law. Husband and wife as tenants by the entirety are seized not of a moiety but of an entirety. Under the Married Women’s Acts each tenant by the entirety is a tenant.in common or joint tenant of the use,,each being entitled to one-half of the rents and profits during the joint lives. Where one tenant by the entirety, not being trustee or agent of the other, appropriates all the rents and profits, the remedy is not in equity but at law for money had and received. This is true although there will be a long accounting, with an examination of books and vouchers. Appeal by-the defendant, Charles Henry Hiehaus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of' March, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint. ■ . . Herman J3._ Qoodstein, for the appellant. Mayer L. Halff, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: This is an appeal from an interlocutory judgment overruling a demurrer to the complaint, the point of the demurrer being that the facts, set forth in the complaint will not sustain a suit in equity, but that plaintiff’s remedy lies in an action at law. ' It is not questioned by respondent that she seeks in this action only equitable. relief, nor that the demurrer should' have been sustained If it appears upon the face of the complaint that she has an adequate remedy at law. (Moore v. Coyne, 113 App. Div. 52.) “ ‘ If a party. brings an equitable action evén now, when the same court administers both systems of law and equity, the party must maintain his equitable action upon equitable grounds or fail, even though he may prove a good cause of action at law on the trial. ’ ” (Loeb v. Supreme Lodge, Royal Arcanum, 198 N. Y. 187.) The complaint alleges that plaintiff and defendant,, her husband, are tenants by the entirety of certain real estate in the county of Westchester; that defendant is now and lias been since September 26, 1907, in. possession of the property and" has collected all the issues and profits of the same; that he has not paid such issues and profits over to plaintiff; that there are taxes due and unpaid upon said property. The prayer is for an accounting in equity and that defendant be decreed to pay over such sum as may be found due to plaintiff. A tenancy by the entirety is a peculiar estate in which each tenant is seized, in the eye of the law, not of a moiety but of an entirety. There, has been much discussion as to the respective rights of each tenant to the usufruct of the. estate, but it has been settled in this State that, under the so-called. Married Women’s Acts, eacli tenant becomes a tenant in common, or joint tenant “ of the use, each being entitled to one-lialf of the rents and profits during the joint lives.” (Hiles v. Fisher, 144 N. Y. 306.) If then the defendant has appropriated to his own use all the rents and profits of the estate, the plaintiff is entitled to recover from him her share. But it does not follow that her appropriate remedy is by resort to equity. It is not claimed that, with respect to the property in question, the defendant is a trustee or agent for plaintiff, and it is apparent that he is not. The only reason given in the complaint for a resort to equity is that, in order to ascertain how much is due plaintiff, it will be necessary to go into a long and complicated account, with an examination of books and vouchers. But this alone does not justify an equitable action for an accounting. (Marvin v. Brooks, 94 N. Y. 80; Uhlman v. N. Y. Life Ins. Co., 109 id. 433.) Tlie plaintiff’s appropriate form of action under the circumstances Is for money had and received. In such an action, if it proves to be "necessary, the plaintiff can have an. examination of defendant and a reference. It is, therefore, apparent from the statement of the case in the complaint that plaintiff has an entirely adequate remedy at law. The respondent refers us to certain authorities to the effect that one partner may sue another in equity for an amount due without asking for a dissolution. In such a case, however, the partner suing has no adequate remedy, or any remedy at all, at law, for one partner may not sue another at law. The interlocutory judgment must be reversed, with costs and disbursements, and the demurrer sustained, with costs, with leave to plaintiff to amend her complaint within twenty days upon payment of all costs. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.