Storandt v. Wakelee

Hubbs, J.: Both parties noticed this cause for trial at a Special Term as an equity action. Not having been disposed of at that term plaintiff noticed it for a subsequent Special Term. On the call of the calendar, defendant’s counsel moved to strike the case from the calendar and send it to the Trial Term on the ground that defendant was entitled, as a matter of right, to a jury trial. That motion was granted and from the order entered thereon the plaintiff has appealed to this court. The complaint states a cause of action to determine a claim to real property of which the plaintiff is in possession, claiming title' in fee, and contains the essential allegations, including the prayer for judgment, required by section 1639 of the Code of Civil Procedure. The answer puts in issue the material allegations of the complaint and alleges that defendant is the legal owner; also that the defendant, by reason of the facts set out in the answer, is the equitable owner. The plaintiff treated the answer as alleging a counterclaim, and served a reply. It is urged here that the defendant, by noticing the case for trial for the first Special Term at which it was upon the calendar, waived her right to a jury trial and that, having once waived such right, it could not be insisted upon at the next Special Term when the case was noticed for trial by the plaintiff only. We do not think that noticing the case for the first Special Term constituted an absolute waiver by the defendant of her right to a jury trial. Even though such act did constitute a waiver, we think the Special Term had authority, in its discretion, to excuse such waiver by the defendant and to send the case to a Trial Term to be tried [154] before a jury. When it made the order sending the case to the Trial Term, the Special Term exercised its discretion and excused the waiver, if there was one, and we do not feel that we should interfere with its action. (Boyd, v. Boyd, 12 Misc. Rep. 123; affd., 146 N. Y. 403; 3 Cornell Quarterly, 305, 307.) It is also urged by the appellant that the defendant, under her answer, is not entitled to a jury trial. The appellant concedes that, under section 1642 of the Code of Civil Procedure, if the answer had set up only the defense that the defendant was the legal owner of the property in question, she would be entitled to a jury trial if she had not waived it. (Bennett v. Vonder Bosch, 26 App. Div. 311.) The appellant insists that the defendant, in her answer, has coupled with the defense that she is the legal owner of the property, an equitable defense, and asks for equitable relief, and that, by so doing, she has deprived herself of the right to a jury trial. We are unable to agree with such contention. Upon the facts set up in the answer, the defendant would have had the right to maintain an action in ejectment and, therefore, would have the right to a jury trial. The facts stated in the answer set up a cause of action in ejectment and not an equitable cause of action and, under such answer, the defendant is entitled to a jury trial. (Boyd v. Boyd, supra; Bennett v. Vonder Bosch, supra; Remsen v. N. Y., B. & M. B. R. Co., 111 App. Div. 413.) Upon the trial it may develop that the allegation, contained in the answer, that the defendant is the owner of the real estate in question, cannot be sustained. In such event, the trial justice could excuse the jury and try the case as an equity action or send it to a Special Term for trial. The order should be affirmed, with costs. All concurred, except Foote, J., who dissented, in an opinion'.