Shaiman v. Flint

In an action for partition and an accounting, the defendants appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), entered April 20, 1989, which granted the plaintiff’s motion to strike the defendants’ demand for a jury trial. Ordered that the order is affirmed, with costs. While it can be argued that the defendants in this partition action did put title in issue in their counterclaim (see, RPAPL 907), "[t]he character of a defense and counterclaim is controlled by the substance of the facts alleged, and not solely by its prayer for relief (Wainwright & Page v Burr & McAuley, 272 NY 130; Auerbach v Chase Nat. Bank of City of N.Y., 251 App Div 543)” (Seneca v Novaro, 80 AD2d 909, 910). A review of the substance of the facts alleged by the defendants in their answer and counterclaim, establishes that what they are actually seeking is equitable relief. Accordingly, the court did not err in striking their demand for a jury trial. We have considered the defendants’ remaining contentions and find them to be without merit. Mangano, P. J., Brown, Kooper and Harwood, JJ., concur.