Majority
p. 943Joseph De Ruvo, Respondent, v. Benedict L. Paglia et al., Appellants.
Order unanimously reversed and the motion to strike the ease from the jury calendar granted. As plaintiff has pleaded a cause of action at law with a cause of action for equitable relief, he has thereby waived his right to a jury trial for the common-law cause of action. (Di Menna v. Cooper & Evans Go., 220 N. Y. 391 ; Leav v. Weitzner, 268 App. Div. 466 , 467.) Settle order on notice. Present —Dore, J. P., Cohn, Callahan, Bastow and Botein, JJ.
Cases cited
- Di Menna v. Cooper & Evans Co. 220 N. Y. 391 p. 943