In re the Estate of Garfield

Valente, J. The narrow question posed by this appeal, whether an executrix has a constitutional right to a jury trial as to a creditor’s claim in an accounting proceeding in the Surrogate’s Court, has been settled by a long line of decisions that establish beyond all peradventure that no such right exists. In 1924, Surrogate Foley in Matter of Beare (122 Misc. 519, 520, affd. 214 App. Div. 723) said: “ it has been the established law of this state for over 100 years that jury trials cannot be obtained as of right in accounting proceedings. Such proceedings are essentially equitable in their nature and equitable jurisdiction in them has been conferred by section 40 of the Surrogate’s Court Act ”. The same conclusion was reached in Matter of Boyle (242 N. Y. 342) and Matter of Woodward (105 Misc. 446, affd. 188 App. Div. 888) cited with approval in Matter of Boyle. That there is no right to a jury trial in an accounting proceeding is also recognized by the leading texts in Surrogate’s Court practice. (See 1 Jessup-Redfield, Surrogates Law and Practice [Rev. ed.], § 420, pp. 468-469; 1 Warren’s Heaton, Surrogates’ Courts [6th ed.], § 108[2h], pp. 705-706.) It is urged that while a claimant is barred from demanding a jury trial as a matter of right in an accounting proceeding, an executor or administrator has that right. The rationale of Boyle, Woodward and Beare (supra) compels a rejection of any such distinction. It is not the nature of the claim which alone determines whether there shall be a jury trial but also the nature of the proceeding in which it is asserted. Since the claim herein is asserted in an accounting proceeding, which has always been considered as an equitable proceeding, no constitutional right to a jury trial exists for any of the parties, [31] People ex rel. Lemon v. Elmore (256 N. Y. 489, 493) cited in the dissenting opinion herein, clearly points out that although the Constitution makes inviolable trial by jury “in all cases in which it has been heretofore used ”, it does not “ require that a defendant shall have a right to trial by jury where no such right previously existed ’ There never was, at any time, any right to trial by jury of a claim in an accounting proceeding in the Surrogate’s Court. The Constitution did not preserve a nonexisting right. Although there may be no right to a jury trial, the Surrogate has discretion under section 68 of the Surrogate’s Court Act to order a jury trial. From the record herein, it appears that the denial of a jury trial was not made as a matter of discretion but because of the absence of a constitutional right. Hence, in affirming the order of the Surrogate, we do so without prejudice to any application by the executrix for a trial by jury as a matter of discretion. The order should therefore be affirmed, with costs to all parties payable out of the estate, with leave, however, to appellant to apply to the Surrogate for a trial by jury as a matter of discretion.