Kaufman v. Brenner

tender of Kaufman’s stock (and his resignation from corporate offices) was not made until October 1, 1976, and that plaintiffs failure to tender his stock on or before September 27, 1976 invalidated his attempt to exercise the option. Plaintiff interposed five causes of action in his complaint. In the first cause of action, plaintiff stressed the unique and special value of his shares, the invaluable and irreplaceable group life insurance policy maintained for his benefit by the corporate defendant Opoc and Brenner’s personal guarantee of the corporate defendants’ obligations and alleged that he did not have an adequate remedy at law and that specific performance was an appropriate remedy. In the alternative ("should the Court determine that the plaintiff is entitled to be awarded damages in lieu of specific performance”), plaintiff interposed four other causes of action alleging damages in the sum of $1,350,000 (corresponding to defendants’ specified financial obligations under the agreements), together with "such other damages as may be determined by the Court”. Plaintiff omitted any reference to defendants’ agreement to maintain the insurance or guarantee the payments in those alternative causes of action. By its affirmance of the order of January 11, 1978, the majority holds that plaintiffs cross motion to vacate and set aside defendants’ demand for a jury trial was properly granted. With regard to this issue, the Special Term held: "The cross-motion by plaintiff for an order vacating and setting aside defendants’ demand for a jury trial is granted. In an equity action neither the plaintiff nor the defendant is entitled to a jury trial. See Phoenix Mutual Life Ins. Co. v. Conway, 11 N Y 2d 367 ; Wagenhoffer v. Bier, 75 Misc 2d 428 ; Application of Motor Vehicle Accident Indemnification Corp. [Coccaro], 40 Misc 2d 1038 . In Jamaica Savings Bank v. M. S. Investing Co., 274 N. Y. 215 , 221, the Court of Appeals stated: 'In an action in equity there is no right of trial by jury. Even where, as incidental to the main relief prayed for, the complaint asks money damages, a separate trial by jury is not within the purview of the constitutional guarantee.’ In the case at bar, the first and main cause of action is in equity seeking specific performance. The other causes of action are pleaded in the alternative. In Northern Operating Corp. v. Anapol, 30 A D 2d 690 , a similar situation was considered by the Second Department, which stated: 'Although it would in no event be necessary to decide whether defendant was entitled as a matter of right to a jury trial of the second cause, it appears unlikely that the defendant had such right, since the second cause is essentially one seeking alternative relief and the major thrust of the case is in equity (4 Weinstein, Korn, Miller, N.Y. Civ. Prac., para. 4101.37)’. (See also Concurring Opinion of Justice Rabin in Federman v. Berger, 13 A D 2d 766 )”. In substance, the Special Term and the majority hold that defendants were not entitled to a jury trial on the ground that the causes of action seeking money damages were pleaded in the alternative and were merely "incidental” to the main equitable cause of action, which cause of action represented the "major thrust” of the case. I disagree with the reasoning and conclusion of both the Special Term and the majority. It has been consistently held by the courts of this State that if a party asks for both legal and equitable relief, even if in respect to the same transaction, and even if pleaded in the alternative, he may not deprive an adverse party of the latter’s right to a jury trial of all issues so triable (Di Menna v Cooper & Evans Co., 220 NY 391 , 395; Ehrle v Sutton Place Apts., 137 Misc 122 , 123; L. C. J. Realty Corp. v Back, 37 AD2d 840 ; Vinlis Constr. Co. v Roreck, 23 AD2d 895 ; see, also, CPLR 4103, which governs the situation where it appears during the course of a trial that a plaintiff who sought equitable relief is entitled to legal relief only. Under such circumstances, defendant is

given an opportunity to demand a jury trial of the newly-arisen legal claims). Nor does the reasoning of Special Term mandate a different conclusion. The Special Term held that the legal relief sought was incidental to the main cause of action seeking equitable relief and cited, in support thereof, Jamaica Sav. Bank v M. S. Investing Co. ( 274 NY 215 ) and Northern Operating Corp. v Anopol ( 30 AD2d 690 ). In my view, those cases are readily distinguishable from the case at bar. In the Jamaica Sav. Bank case the complaint pleaded a single cause of action in equity seeking foreclosure and judgment for a deficiency. Defendants’ request for a jury trial was denied on the ground that the right to recover a deficiency judgment did not exist as a separate action independent of the established equitable action for foreclosure. Jamaica Sav. Bank, then, really involved a single equitable cause of action. Here, plaintiff has interposed, in addition to an equitable cause of action, several traditional causes of action for damages arising out of an alleged breach of contract. The Northern Operating Corp. case is also distinguishable. There, this court’s expression of doubt as to whether the defendant therein was entitled to a jury trial was clearly dictum. Moreover, the court’s statement in Northern that the legal relief requested was merely an alternative to the equitable cause of action, which was "the major thrust of the case”, is clearly supportable and understandable in the light of the factual context of that case, which involved a plaintiff purchaser’s equitable action for specific performance of a contract for the sale of real property. Specific performance of a contract to convey real estate however, is a "well-recognized” remedy and, as a general rule, the vendee’s right to specific performance "is not affected by the existence of a remedy at law and an action at law to recover damages for breach of contract is not regarded as such adequate remedy” (81 CJS, Specific Performance, § 77, pp 886, 890-891). In the case at bar, the thrust of plaintiff’s action is clearly the recovery at law of monetary damages in the sum of $1,350,000 (cf. City of Syracuse v Hogan, 234 NY 457 ). Accordingly, plaintiffs cross motion to vacate defendants’ demand for a jury trial should have been denied.