Norwegian Atlas Insurance v. Northern Underwriters Agency, Inc.

Proskauer, J.: Defendant Steendal was plaintiff’s president and agent. He is sued here in equity for an accounting. He pleads a defense and counterclaim, which he asserts is a legal cause of action entitling [186] Mm to jury trial as a right under section 424 of the Civil Practice Act. Under section 429 he asks an order directing that the issues arising out of his counterclaim be framed for a jury. He submits fourteen questions covering seven typewritten pages of a character practically impossible of disposition on a jury trial. The nature of these questions indicates the fallacy in defendant’s position. His counterclaim essentially is that the original agency agreement was amended by an engagement on plaintiff’s part to pay him the excess of any expenditures he might incur for plaintiff over and above Ms compensation as fixed by the agency agreement and that there was a specific excess, for which he asks money judgment. In effect he alleges merely a modification of the agency agreement and his version of the account which must be taken pursuant thereto. In the table contained in Ms counterclaim he credits himself with expenses incurred or assumed and debits himself with Ms version of his agency commissions, adjustment expenses and brokerage. These are the very items which must be determined by the accounting to which plaintiff is entitled as a matter of right. It has been held that the prosecution of a cause of action at law cannot be thwarted by asserting a merely colorable equitable counterclaim. (Bennett v. Edison Electric Ill. Co., 164 N. Y. 131; Reilly v. Gutmann Silks Corp., 113 Misc. 502.) The converse of this proposition is equally sound. TMs case is on the day calendar for trial and the making of this motion at this late date appears to me an attempt to impede the plaintiff’s right to an accounting. Furthermore, he would not be entitled to the trial of framed issues, but only to a jury trial of the actual issues raised by his counterclaim. (Civ. Prac. Act, § 424.) The motion is denied for this reason and on the stated grounds that the counterclaim is in itself equitable, not legal, and its assertion does not entitle defendant as a matter of right to a jury trial.