Jaffe v. Reliance Insurance

Appeal by plaintiff from an order of the Supreme Court, Ulster County Special Term, which directed that a jury demand be stricken from plaintiff’s note of issue and ordered the action be tried as a non jury case. Special Term held that plaintiff, as a matter of law, waived his right to a trial by jury by joining legal and equitable causes of action in his complaint. The complaint is of a split character. The first cause of action against the insurance company is for reformation of a fire insurance policy on the ground that the defendant Levine, as agent of the insurance company, inserted certain false warranties in a declaration executed by the plaintiff, and seeks to have such warranties eliminated; and thereafter to recover for an alleged fire loss. The second cause of action against the insurance company, and the third cause of action against the defendant Levine, seek damages for the alleged fraudulent acts claimed to have been committed by the defendant Levine as agent of the insurance company. Plaintiff contends that his action for reformation is merely incidental to his fundamental claim, which is the recovery of money damages under the policy as it was represented to him. It seems however that such action is more than merely incidental; it is really the fundamental action upon which relief by way of money damages depends. The claim for fraud in the second and third causes of action is based upon the same alleged acts that are the basis of the claim for reformation. There is abundant authority to the effect that where a plaintiff joins equitable and legal causes of action upon facts arising out of the same transaction he is deemed to have elected to waive his right to trial by jury (Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 395-396; Carroll v. Bullock, 207 N. Y. 567, 574; Hessler v. North River Ins. Co., 211 App. Div. 595; Moe v. Reliance Ins. Co. of Philadelphia, 188 App. Div. 977). Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.