Waters v. Crawford

The complaint is not in express terms a bill to redeem, yet it states the facts necessary for such an action, and in addition to the special relief prayed for, it contains the usual prayer for general relief.

Upon the whole case, as disclosed in the appeal papers, there is no reason to doubt the good faith of the plaintiff in his attempt to redeem, and upon the settled principle of equity, he is still entitled to a redemption upon such terms as may be just. It was, therefore, error at special term to treat the action as brought simply for the possession. An accounting between the parties should have been ordered. Could it be contended that the prayer for general relief is not equivalent to a special prayer for a redemption, yet the court had power to disregard the defect and render an appropriate judgment.

The divergent views entertained by judges of great experience place in a strong light the difficulties under which counsel for the plaintiff labored in determining upon his course, and show that this is not a case where an error should be severely punished. The court at special term seems to have proceeded upon the doctrine, that it had no power to regard this as an equitable action. This was error.

The plaintiff having made a new tender, embracing the amount supposed to be actually due the landlord, the complaint should be amended so as to embrace an absolute offer to pay that amount. Leave is given to the plaintiff accordingly, if he so elects, upon the payment of the costs prior to this appeal. On such election and *605payment of costs, judgment is reversed without costs of this appeal, and a reference ordered to try the issues, with instructions to the referee to take proof of all payments by any of the parties, and to state the account between them. A decree can then be made that will do equity.

So ordered.