The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-18
Oyanisn q Judge San Afsrd, Affecting shs
sUPERIoR COURT.


SUPERIOR COURT.
WsaiSm Hepburn snd CAsries Wius, spyssssts, aIsA.
Wi!ii~~ Linden s~l JsAr Fritz, res,s~Isnis-As. J..
ooshrsns, for the appellants; Mr.. J. n. Knox, fox
the pssponasnts
BT IaE Counr Tho only ground presented By
the demurrsr which requires any serious ssn-
sdesstion 10 that NO right Of entry sxists In the
plsintins; that the issss executed BY them 60
West opsrstsa - assignment Of the original lease
rest In the PLAINTIFF they cannot recover. whatsoever
the effect Of this lease might BE- between West and
. sns sss :
Be regarded - sub-lesse and not Assignment ~
the original term The right to enter reserved
enter for breaches Of the conditions although thses
be no reversi0n remaining In them.-(Doe, sx dan.
ney Vs. Pest, saodf r. los, anrmsd on appeal
Comst Se4) The judgment for the plaintiffs On tbs
demurrer must be affirmed with costs On the APPEAL
sussop arisss The complaint stsr setting forth to
violations Of covenants and conditions for which tAs
plaintiff. seek to recover prsys for judgment OF tcs
for that dspossessed and that the plaintiffs %
put into possession, Of the premises 1t then pays
for injunction to restrain the defendants nom AK
Ing alterations the buildings, and from usng them
for ratsng liquors. and In other modes prohihtsd BY
the covenants In the lease the forfeiture ana ~ 10y
Of brought tor the recovery Of demised pre-
mises The Injunction asked, IL purely equitable re-
lief heretofore given in chanoery suit, and In cen
formity to the principles of equity Ths sjsetDsnt
brought TO effect entry, Ter breaches OF the
diton In lease has always been regarded in the law
rs hard sction-ons stretiss~i jiris and the Rag
lihh chRDseTy reports abound In In which tie
courts Of equity have been inportunsd TO relieve To-
nants aGeinst he foreitures claimed In such actions
proceeding like that before Ms, would never have
been thought Of under the system Of remedies
in force prier 10 the Code Of Procedure. EQUITY
abhors forfeit and always relieves against thsms
when possible TO do and man would have
y.ntured, under that system to ask her for On ;
Of her benign remedies, while In the sam
breath. be demanded from her rigorous forfeiture
bis oppopes estate in the subject Of the controversy.
Does The Code OF Procedure make any change In the
respect, Can . plaintiff, under the Code ask for
equitable relief. and in the same suit, demand for
feitre We are clear that the code has net altered
the rule. 1t has abolished the distinction between
legal and equifab remedies but IL has not changed
the inherent difference between legal and equitable
legal equitable. will bs administered In the same
form OF proceeding In some cases alternative relief
other Nm in which cases action ut law
ssIy before TO attain the one form, and bill In equity
to reach the other suit for specific performances 70
one OF that description But We think inconsistent
relief can be- asked than 1t could be under
the cid system ynder cannot now exhibit . com
plaint demanding payment Of an instalment Of pur-
chase money in aursr and also q forfeiture Of the
contract OF sale and restoration Of the possession,
even II the contract expressly provided for such pay
tratcn Of aiming than this very case Tbs for
fixture of The term Is relief totally inconsistent with
any eqniabls remedy. The lessor may purfue hia
remedy Tor re@otry and possession or he may pro
coed foI injunction aud damages leaving the tenant
in pos rs.ion lie has undoubted option 10 do
either. lie cannot do both at once He that seeks
equity must do equity Is maxim which lies Mt the
foundation OF equity Jurisprudence and 1t 10 not at oil
affected hy any change OF emediss We imagine that
a much broader eject has besn claimed for the abo-
fioR Of the distinction between legal and equitable
dies than intended by the Legislature
The drst section OF the Code shows what intended
by the word remedies 1t Is limited to actions and
special proc. oipg and the declared object Of the
preamble to the Code is simpyts abolish the dstinc-
ton between lsgal and equitable actions. There no
ground for supposiDg that there was any design to
abolish the distinction between the modes OF rccf
known TO tie la~ legal and equitable or TO subsi-
tute the for the other, in any Those modes
of rtlief-the judgment or the decree-to which o
party upon q tain state Of facts entitled
fixed by the law OF the land. No inference dedHc-
msnt by the Legislature could change them. The
Code contains such snactment and repeat, that
do not perc-iv. in 1t any countenance tor in
ference or deduction TO that effect The chapter OF
the Code relative to injunctions, In judgment,
does not st CT the question 1t substitutes order
for the writ hsretofors used and efnes the In
which IL may se granted-th latter being the same
as were establsh.o in Court OF Chancery II does
not profess 70 create remedy. On the contrary
II recognizes the injunction existing provisional
remedy provides the order In place of the writ and
regulates the mode OF granting It. Its character, Is
mode OF equitsbl. r-lis IL not 1t all altered I'M
paired Our conclusion H. that the plaintiffs had no
ure OF the lesr~ As the made by the complaint
would entitls them TO injunction their relief had
been limited TO that remedy, together with damages
We will permit the ction TO stand, their stlpu
stng net TO take jnds for forfeiture delivery
OF Possession OF the promises; and they may smend
thus stpulats the order for the be re-
yc-sed.