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It is an interesting speculation whether an able court does not tend naturally because of its own high level of efficiency to require of others a greater facility in matters of procedure than may reasonably or practically be expected. The New York Court of Appeals now furnishes an occasion for such a speculation. That able tribunal has recently gone far to reEstablish the requirement that the pleader must have and stick to one theory of his cause of action. It has stated, in reversing a judgment because of lack of a jury trial, that "the inherent and fundamental difference between actions at law and suits in equity cannot be ignored," coupling with this some encomiums upon the necessity of exact pleading which have a distinctly antiquarian sound. Still more recently it has expressed "a desire to preserve to litigants the forms of procedure pre- scribed by law and the rights flowing therefrom." It has made doubtful the former New York law that a plaintiff who sued for specific performance knowing that he could get only damages, could nevertheless get the latter, for it states that the weight of authority is that "the court will not retain the action and grant purely legal relief, but will dismiss the complaint." And it has now just held in Syracuse v. Hogan (1923) 234 N. Y. 457, that in a suit to enjoin one from maintaining a building and other encroachments on a strip of land, title to which was claimed by the plaintiff, the defendant who claimed title in himself by adverse possession is entitled as of right to a trial by jury. Judge Cardozo dissented in an able opinion, in which judges Pound and Crane concurred.

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Union of Law and Equity and Trial by Jury Under the Codes, 32 Yale Law Journal 707 (1923)

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