Ross v. McCaldin

Gaynor, J.: There was no question made at the trial but that the complaint stated a cause of-action. It was only claimed by .-the defendant’s [14] counsel when the case was reached for trial that the complaint did not state an equitable but a common law cause of action, which seems to be the case. Why he called attention' to this is not apparent, for he expressly said the court could not dismiss the complaint for that reason ; which was entirely correct, for a complaint that states any cause of action, legal or equitable, cannot be dismissed on its face, or because the cause is on the wrong calendar. - If it cotild not be dismissed it certainly had to be tried, and' the only question therefore was whether it should be tried by a ¡judge alone or with a jury. Unless a party claim his right to a jury trial before any evidence is received he waives it (Code Civ. Proc. sec. 1009; McKeon v. See, 51 N. Y. 300) and that.is the ease of the defendant here; for the defendant did not claim the right to a jury trial. Inasmuch as a jury trial was waived, it does not matter what was the kind of action pleaded and proved. It could not be dismissed at the close for being a- common law action. The plaintiff had the right to recover on it whether it was in equity or at common law. It therefore does not matter whether it was the one or the other. . The judgment should be affirmed,' Jenks, Hooker and Miller, J.J., concurred ; Rich, J., concurred in separate opinion. ■ •