Maas v. Swalbach

Rodenbeck, J. This action is brought to foreclose certain land contracts assigned to the plaintiff by the defendant Swalbach in part settlement of moneys which it is claimed he unlawfully appropriated and for judgment for deficiency against him and the defendant Anton Strauss, who guaranteed the repayment of the moneys alleged to have been misappropriated. The action is for both equitable and legal relief and the defendant Strauss who makes this application is entitled to a jury trial of the legal issues raised by his [560] answer in which he sets np want of consideration, fraudulent representations and undue influence in securing the guaranty and illegality in the settlement of the alleged misappropriations. Such a trial will be directed on motion of the defendant under section 970 of the Code of Civil Procedure. Wheelock v. Lee, 74 N. Y. 495, 500; LeFrois v. County of Monroe, 88 Hun, 109, 112; Snell v. Niagara Paper Mills Co., 193 N. Y. 433. The plaintiff, however, claims that the defendant Strauss is not entitled to a jury trial because the action involves a long account which may be referred. Although an action on an account is an action on contract yet under the common law practice if it involved extensive items it was not triable by jury and this practice has come down to us and is preserved in section 1013 of the Code of Civil Procedure. The section of the Code referred to provides that the court upon the application of either party may refer an issue involving the examination of a long account which will not require the decision of different questions of law. That is not the situation here. The issues in this case may or may not require the examination of a long account according to their determination so that the account is only collaterally involved and under such circumstances no reference will be directed. Camp v. Ingersoll, 86 N. Y. 433; Cassidy v. McFarland, 139 id. 201; Thayer v. McNaughton, 117 id. 111; Claflin v. Drake, 38 Hun, 144; Keller v. Payne, 51 id. 316; Cameron v. Freeman, 18 How. Pr. 310; Untermyer v. Beinhauer, 105 N. Y. 521. The statement of the issues to be submitted to the jury may be stipulated or, if not agreed upon, settled upon two days’ notice. Ordered accordingly.