Gentil agt. Arnand.

bar to a trial and conviction upon a subsequent indictment for the same offense. The plain provision of the statute disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.

It is claimed by the prisoner that both indictments were in fact for the same offense. But we deem it unnecessary to pass upon this question.

The judgment should be affirmed.

Concurring on the main question: WRIGHT, PORTER, HUNT, SCRUGHAM, and GROVER.

The question of having several forged bills in possession, &c., not passed upon.

Affirmed.

N. Y. SUPERIOR COURT.

GENTIL agt. ARNAND et al.

Relief by an injunction against trespass, is three fold; 1st. Admission or adjudication of plaintiff's right. 2d. Admission or adjudication of defendant's wrong; and 3d. Inadequacy of a remedy at law. If the trespass amount to an actual ouster, it is remediable by ejectment; if it fall short of ouster, then by trespass, and in neither case will an injunction lie, in the absence of any special equity in the case. A complaint in the case for an injunction, may be dismissed, on motion, without an answer for want of equity, on its face.

Where it appears on the face of the complaint, that the plaintiff is not entitled to relief by injunction, as a part of the final judgment in the case, there is no authority to issue or uphold a preliminary injunction.

Special Term, November, 1869.

MOTION by defendants to dissolve injunction.

MCCUNN, J. To authorize an injunction under section 219 of the Code, the complaint must show the plaintiff entitled to an injunction as ultimate relief; and, that a present preliminary injunction is necessary to avert intermediate injury. (Hart agt. Harvey. 32 Barb.) Now the complaint herein,

Gentil agt. Arnand.

exhibits no equity. The injury alleged is a mere trespass, and a mere trespass is insufficient to authorize an injunction. "The principle of injunctive relief against a tort is, that, whenever damage is caused or threatened to property, admitted or legally adjudged to be the plaintiff's, by an act of the defendant admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, an injunction may issue against the commission or continuance of the wrong." Thus three conditions are essential to injunctive relief against trespass: First-admission or adjudication of plaintiff's right; Second-admission or adjudication of the defendant's wrong; and Third-inadequacy of a remedy at law. Neither of these conditions are operative in the present case; for both the right of the plaintiff and the wrong of the defendants are explicitly denied, and in fact, decisively disproved; moreover, it is plain the complainant has an ample remedy in an action of damages at law, and his mere denial of the inadequacy of legal remedy avails nothing when he shows no fact indicative of irreparable injury, and the court sees he has abundant redress in an action for damages. If the trespass amount to an actual ouster, it is remediable by ejectment; if it falls short of ouster, then by trespass; and in neither of these cases will an injunction lie (Thomas agt. Oakley, 18 Vesey, 184). There must be some special equity in the case so as to bring the injunction under the head of quieting possession, or preventing irreparable injury, or inadequacy of compensation in damages (Livingston agt. Livingston, 6 Johns., Ch. R., 497). That an injunction will not issue when the injury is remediable by damages see Marshall agt. Peters, (12 How., 218); and it well establishes that it will not issue to restrain an apprehended trespass (Mayor of New York agt. Conover, 5 Abb.). The allegation in the complaint of the destruction and removal of the plaintiff's personal property raises no equity for an injunction; since these are injuries for which an obvious and adequate remedy

Gentil agt. Arnand.

may be had at law by an action of trover, replevin, or trespass. A bill of injunction may be dismissed on motion without an answer, for want of equity, on its face (Crandall agt. Woods, 4 Cali., 449.)

It being obvious therefore, on the face of the complaint that the plaintiff is not entitled to injunctive relief, as a part of the final judgment in the case, there is no authority to issue or uphold an interim injunction. On this point the language of sub. 1, sec, 219 of Code, is explicit and peremptory. "Where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief consists in a final injunction," &c. The plaintiff's own statement of her case postively discredits her claim to injunctive relief.

In a certain sense an interlocutory injunction is in the discretion of the court; yet the discretion is not arbitrary or capricious but is regulated by well established and familiar rules of practice. A preliminary injunction should not be granted unless the injury is pressing and delay dangerous. A clear right, free from reasonable doubt, must be shown to authorise a preliminary interference of the court.

In the present case, the right is not only denied but positively disproved, and it is an almost universal practice to dissolve the injunction, where the answer fully denies all circumstances upon which the equity of the bill is founded. (Hoffman agt. Livingston 1 Johns. Ch., R. 211.) In the present case, not only is the equity of the bill explicitly denied, but, in fact, all the right and all the equity are with the defendants.

They are in the legal possession and enjoyment of the building, and the plaintiff is a mere trespasser, without a shadow of title. Never before did an intruder seek, much less obtain, the equitable interposition of the court to uphold him in his wrongful entry. The injunction order should be dissolved.

Hall agt. Hall.

SUPREME COURT.

WARREN A. HALL, appellant agt. HARVEY M. HALL, respondent.

The court cannot require a plaintiff to give a name to the action. If he states facts in his complaint, which would be proper in an action for a specific performance, and a portion of those facts would be proper in an action for partition, the court cannot require him to elect which action he will prosecute.

The plaintiff may demand any kind of relief, to which he supposes himself entitled; and he is not confined to one kind of relief. The defendant has nothing to do with the form of the relief demanded.

Where the facts stated may constitute one of two actions, which of the two is the proper one, is to be determined on the trial.

Erie General Term, May, 1869.

MARVIN, P. J., LAMONT and BARKER, J. J.

APPEAL from order of special term, granting the motion of the defendant, that plaintiff elect the action to be prosecuted. It appears from the complaint, that the plaintiff is seized in fee of two tenths of certain parcels of land described in the complaint, and that the defendant is so seized of eight tenths. It is alleged in the complaint, that the plaintiff made a verbal contract with the defendant, to purchase his eight tenths of the premises, and that the defendant agreed to sell to the plaintiff, that the plaintiff entered into possession of the premises and is still in possession, that he has had a part of the consideration and is ready and willing to pay the rest as agreed. That he has made some improvements, &c., &c. In short, the complaint is voluminous, stating many facts and circumstances intended to make a case entitling the plaintiff to a judgment for the specific performance of the parol agreement. The plaintiff prays judgment for a specific performance of the contract, or that the premises be divided between the parties in the propor

Hall agt. Hall.

tion of their respective interest therein. An injunction is prayed for.

WILLIAM C. JOHNSON, for plaintiff.

S. S. ROGERS, for defendant.

By the Court.-MARVIN J. The counsel for the defenc ant supposes that two inconsistent causes of action are blended in one count in the complaint.

The counsel for the plaintiff insists that the action is for specific performance of the parol contract. The intention as shown by the complaint, is undoubtedly to litigate the question of the right of the plaintiff, to a judgment for & specifie performance of the parol contract set forth in the complaint.

The facts neccessary to show a right for partition, (viz. that the plaintiff and defendant, are seized in fee of the premises in the proportions of two and eight,) are stated and many facts not neccesary in an action for partition.

Now I do not understand that the court can require the the plaintiff to give a name to the action. He states facts proper in an action for a speciffc performance, and a portion of those facts would be proper in an action for partition. A trial is the judicial examination of the issues between the parties whether of law or fact, (Code § 252.) These issues are made by the pleadings, allegations of facts, and denials or admission of the facts by a demurrer.

The plaintiff in his complaint is to demand the relief to which he supposes he is entitled, but this demand consti tutes no part of the issues to be tried. If there is no answer to the complaint, the relief granted cannot exceed the demand, but in other cases the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue, (Code § 276.) In my opinion the motion in this case should not have been granted at the special term. I see no objection to the plalntiff's de