Majority
p. 429In the Matter of the Estate of Hannah Shinder, Deceased. Surrogate’s Court, New York County, December 9, 1958.
Arthur N. Field, petitioner in person.
Krause, Kirsch, Gross é Keilpern for Marianne Lowenthal and another, respondents.
Petitioner in this proceeding under section 231-a of the Surrogate’s Court Act to have his compensation for legal services fixed moves to strike out respondents’ demand for a jury trial. Respondents, who are the
p. 430
executrix and sole legatees under the will, filed an answer in which, among other matters, a counterclaim requesting money damages based upon fraud and deceit was pleaded. They contend that they have a right to a jury trial on the basis of that counterclaim. Their contention is overruled.
There is no' constitutional right to a jury trial in a proceeding under section 231-a of the Surrogate’s Court Act which is a proceeding of an equitable nature. (Matter of Richards, 5 A D 2d 124 , 125; Matter of Davis, 10 Misc. 2d 347 .) A counterclaim in an equity isuit did not give rise to a right to a jury trial at common law. (Matter of Blair, 242 App. Div. 689 .) The motion is accordingly granted.
Submit order on notice.
Cases cited
- In re the Estate of Richards 5 A D 2d 124 at 125 p. 430
- In re the Estate of Davis 10 Misc. 2d 347 p. 430