SEC. 3360.

ages claimed being an enormous sum. The action was sus-
tained on demurrer, and it appears that the Court was, at
first, about to give judgment for the whole sum demanded;
but an amicus curia mentioning the case of James vs. Mor-
gan, the action was settled, under an intimation of the
Court, by the repayment of the consideration received for
the contract (2s. 6d.), and costs.

N. Y. C. C., Sec. 1878.

damages.

When a breach of duty has caused no ap- Nominal preciable detriment to the party affected, he may yet recover nominal damages.

N. Y. C. C., Sec. 1879.

TITLE III.

SPECIFIC AND PREVENTIVE RELIEF.

CHAPTER I. GENERAL PRINCIPLES.
II. SPECIFIC RELIEF.

III. PREVENTIVE RELIEF.

CHAPTER I.

GENERAL PRINCIPLES.

SECTION 3366. Specific relief, etc., when allowed.

3367. Specific relief, how given.

3368. Preventive relief, how given.

3369. Not to enforce penalty, etc.

SEC. 3366 Specific or preventive relief may be given Specific in the cases specified in this Title, and in no others.

N. Y. C. C., Sec. 1880.

SEC. 367. Specific relief is given

relief, etc., when allowed.

Specific relief, how

1. By taking possession of a thing, and delivering it to given. a claimant.

2. By compelling a party himself to do that which ought to be done; or,

3. By declaring and determining the rights of parties, otherwise than by an award of damages.

The first includes the ordinary remedies in the common law actions of ejectment and replevin, or, as they may be called under the Code, actions for land and actions for chattels.

Preventive relief, how given.

Not to enforce

The second includes the specific performance of contracts, the delivery of things wrongfully detained, the surrender of instruments to be cancelled, etc.

The third includes all cases in which a right is determined, without ulterior measures. Thus a contract may be declared void, although the instrument containing it is lost; a judgment may be annulled for fraud; the occupant of land may be declared to have a good title as against a claimant who does not himself sue, etc.

N. Y. C. C., Sec. 1881.

SEC. 3368, Preventive relief is given by prohibiting a party from doing that which ought not to be done.

N. Y. C. C., Sec. 1882.

SEC. 3369. Neither specific nor preventive relief can be

penalty, etc. granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.

Judgment

for posses.

ARTICLE I.

POSSESSION OF REAL PROPERTY.

SECTION 3375. Judgment for possession or title.

SEC. 3575. A person entitled to specific real property, sion or title. by reason either of a perfected title, or of a claim to title which ought to be perfected, may recover the same in the manner prescribed by the CODE OF CIVIL PROCEDURE, either by a judgment for its possession, to be executed by the Sheriff, or by a judgment requiring the other party to perfect the title, and to deliver possession of the property.

N. Y. C. C., Sec. 1884.

NOTE.-See Sec. 1213 upon the same subject. Compare, and expunge one or the other.

ARTICLE II.

POSSESSION OF PERSONAL PROPERTY.

SECTION 3379. Judgment for delivery.

3380. When holder may be compelled to deliver.

for delivery.

SEC. 3379. A person entitled to the immediate pos- Judgment session of specific personal property may recover the same in the manner provided by the CODE OF CIVIL PRO

CEDURE.

N. Y. C. C., Sec. 1885.

SEC. 3380. Any person having the possession or control of a particular article of personal property, of which be is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in either of the following cases:

1. When the thing claimed is held subject to an express trust in favor of the claimant.

2. When pecuniary compensation would not afford adequate relief for the loss of the thing claimed; or,

3. When it would be extremely difficult to ascertain the actual damage caused by its loss.

This section is intended to provide for the relief granted by Courts of equity in the cases specified. The ordinary remedy in an action for chattels may be evaded by any one who has sufficient means to pay their value, by the exercise of a little ingenuity. Accordingly, Courts of equity have long intervened to compel a wrong-doer himself to deliver up the things detained by him.

It will be observed that this remedy is not confined to cases of wrongful possession. It may often happen that one who holds a thing in trust may secretly design to make a wrongful disposition of it, and that the owner may have an intimation or suspicion of this design, but no legal evidence of it. A demand before suit might lead to a sudden disposition of the thing, and result in its total loss. The owner ought, therefore, to be allowed to sue without a prior demand, subject to the discretion of the Court as to costs, if it appears that he has made unnecessary litigation (see Bruce vs. Tilson, 25 N. Y., 194). But the section is so restricted as not to include the case of a thing agreed to be sold.

The inadequacy of compensation in damages is the true test of a plaintiff's right to this special relief (North vs. Great Northern Railw. Co., 2 Giff.. 69). Thus freight cars for use upon a railway were decreed to be delivered up, on the ground that similar cars could not be bought ready made, and that compensation in damages would not cover the loss which would be caused by delay (id). It is not, therefore, deemed advisable to attempt any enumeration, in the text of the Code, of the articles which may be recovered by this process. There would be little danger of injustice being done, if this remedy should be more widely applied. A summary of the principal cases in which a specific delivery has been enforced, may however be useful.

Courts of equity have compelled the delivery of old and rare paintings (Lowther vs. Lowther, 13 Ves., 95), of

family paintings (Hunt vs. Moultrie, 1 Bosw., 531; aff'd in Ct. of Appeals), of an ancient altar piece in silver, with a Greek inscription (Somerset vs. Cookson, 3 P. Wis., 389), of a gold snuff box (Fells vs. Reed, 3 Ves.. 70), of beir looms (Macclesfield vs. Davis, 3 Ves. & B., 18; Pusey vs. Pusey, 1 Vern., 273), of family plate (Geoffry vs. Davis, Cary, 34), of jewels (Saville vs. Tankred, 1 Ves. Sr., 101; Belt. Supp., 70; Young vs. Eurrel, Cary, 54), of farm stock (Nutbrown vs. Thornton, 10 Ves., 159), of masonic regalia (Lloyd vs. Loaring, 6 Ves., 773), of mortgage deeds (Jackson vs. Butler, 2 Atk., 306; Knye vs. Moore, 1 Sim. & S., 61), of books of account (Evans vs. Van Hall, Clarke, 26; Lingan vs. Simpson, 1 Sim. & S., 600), and, in slave States, of particular slaves (Hall vs. Clark, 12 Sme. & N., 189; Butler vs. Hicks, 11 id., 79; Murphy vs. Clark, 1 id., 221; Dudley vs. Mallory, 4 Geo., 52; Sims vs. Shelton, 2 Strobh. Eq., 221; Ellis vs. Commander, 1 id., 188; Sarter vs. Gordon, 2 Hill's Ch., 121; Lofton vs. Espy, 4 Yerg., 84; 10 id., 30; Williams vs. Howard, 3 Murph., 74; Young vs. Burton, 1 McMull. Eq., 256). In Dowling vs. Betjeman, (2 Johns. & Hem., 544), the Court asserted its right to order the specific delivery of a new painting, upon the application of the artist himself, but the plaintiff in that case having put a valuation on the painting, this was held to show that compensation in damages would be sufficient re

lief.

N. Y. C. C., Sec. 1886.

ARTICLE III.

In what

cases compelled.

SPECIFIC PERFORMANCE OF OBLIGATIONS.

SECTION 3384. In what cases compelled.

3385. Remedy mutual.

3386. No remedy unless mutual.

3387. Distinction between real and personal property.

3388. Contract signed by one party only, may be enforced by other. 3389. Liquidation of damages not a bar to specific performance. 3390. What cannot be specifically enforced.

3391. What parties cannot be compelled to perform.

3392. What parties cannot have specific performance in their favor.
3393. Specific performance not required when oppressive.

3394. Agreement to sell property by one who has no title.
3395. Relief against parties claiming under person bound to
perform.

SEC. 5384. Except as otherwise provided in this ar ticle, the specific performance of an obligation may be compelled

1. When the act to be done is in the performance, wholly or partly, of an express trust.

2. When the act to be done is such that pecuniary com pensation for its non-performance would not afford adequate relief.

3. When it would be extremely difficult to ascertain

the actual damage caused by the non-performance of the act to be done; or,

4. When it has been expressly agreed, in writing, between the parties to the contract, that specific performance thereof may be required by either party, or that damages shall not be considered adequate relief.

The word "obligation" is used, because some obligations created by operation of law may be enforced in this manner. It includes an award, which may be specifically enforced (Bouck vs. Wilber, 4 Johns. Ch., 405). The obligation must be a subsisting one (Arnoux vs. Homans, 25 How. Pr., 427).

Thus, a trustee who has wrongfully disposed of stock may be compelled to restore the same amount of stock (Forrest vs. Elwes, 4 Ves., 497). So the specific delivery of a common article of merchandise will be enforced, when held under a trust (Pooley vs. Budd, 14 Beav., 34; Mechanics' Bank vs. Seton, 1 Peters, 299; M'Gowin vs. Remington, 12 Penn. St., 56).

Though in most cases the act which is sought to be specifically enforced is a transfer of property, the jurisdiction is not confined to that class of cases. The Courts have thus enforced an agreement to insure (Tayloe vs. Merchants' Fire Ins. Co., 9 How. [U. S.], 405; Carpenter vs. Mutual Ins. Co., 4 Sandf. Ch., 408; Neville vs. Merchants' Ins. Co., 19 Ohio, 452), to indorse a note (see Watkins vs. Maule, 2 Jac. & W., 242), to form a partnership (Buxton vs. Lister, 3 Atk., 385; England vs. Curling, 3 Beav., 129; Birchett vs. Bolling, 5 Munf., 442; Anon., 2 Ves. Sr., 629), to discharge a judgment (Phillips vs. Berger, 8 Barb., 527; 2 id., 609), to release a mortgage (Malins vs. Brown, 4 N. Y., 403), to improve land (Stuyvesant vs. Mayor, etc., of New York, 11 Paige, 414), to build an archway (Stover vs. Gt. Western Railw. Co., 2 You. & Coll. Ch., 48), etc. The nature of the property affected, whether real or personal, is not decisive of the right to specific performance, which depends entirely upon the inadequacy of damages to compensate the injured party (Story Eq. Jur., Sec. 717; see Cathcart vs. Robinson, 5 Peters, 261; Adderley vs. Dixon, 1 Sim. & S., 607; Harnett vs. Yielding, 2 Sch. & Lef., 549; Dalzell vs. Crawford, 1 Pars. Sel. Eq Cas., 27).

Falcke vs. Gray, 4 Drewry, 651; 5 Jur. [N. S.], 645. Contracts for the sale of chattels of singular value (ib.), or of stock in a corporation (Cheale vs. Kenward, 5 De G. & J., 27; Shaw vs. Fisher, 5 De G., M. & G., 596; Duncuft vs. Albrecht, 12 Sim., 189), may be specifically enforced.

As to the fourth subdivision, there is no reported decision upon this proposition, but in these days, when a judgment for damages affords such very unsatisfactory relief in many cases, there seems much reason for allowing parties to enter into such a stipulation.

N. Y. C. C., Sec. 1887.

mutual.

SEC. 3385. When either of the parties to an obligation Remedy is entitled to a specific performance thereof, according to the provisions of the last section, the other party is also entitled to it, though not within those provisions.

Story Eq. Jur., Sec. 723; Phillips vs. Berger, 8 Barb., 527; Schroeppel vs. Hopper, 40 id., 425; Withy vs. Cottle, 1 Sim. & S., 174; Turn. & Russ., 78; see Crary vs. Smith, 2 N. Y., 60.

N. Y. C. C., Sec. 1888.