Paine v. Irwin

We do not deem it necessary to express our views in an elaborate manner upon the questions discussed on the appellant’s brief. The order made at Special Term was demanded by the allegations of the complaint, construed together. The avowed impracticability of the bank to simply avoid the sale, places the relief sought beyond any remedy which this court could grant on the facts alleged. The court below was decidedly influenced by the avowal mentioned, but granted leave to amend, of which the plaintiff did not avail himself. Whether, if the complaint were amended, the relief sought could be given, is a question we are not called upon now to consider. The absence of any charge of fraud, and of any charge of excess in price in the sale by the defendant, are circumstances which must be of much weight in the ultimate disposition of the case.

We adopt as expressive of our views the opinion rendered at Special Term by the learned justice presiding.

The order appealed from should therefore be affirmed.

dissenting :

If any relief whatever could have been granted upon the material facts pleaded, the demurrer should not have been sustained.

I am of opinion that, upon the facts pleaded, the plaintiff could have been adjudged entitled to abandon and restore to the defend*396ant the property with all the improvements put upon it, and recover the purchase-price paid without interest, if for the best interests of the beneficiaries, on his election to do so within a prescribed time. That relief might be neither desirable nor valuable, but as a court of equity, upon the facts admitted by the demurrer, could and ought to award it, it was error to sustain the demurrer and give judgment for defendant.

I dissent, therefore, from the conclusion of my brethren, that the judgment should be affirmed.

Order affirmed.