Ketcham v. Wilbur — 244 N.Y. 609

Majority

p. 609

Mary D. Ketcham, an Infant, by Clara F. Ketcham, Her Guardian ad Litem, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant. Clara F. Ketcham, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant.

Headnote

Trial — actions to recover for breach of alleged contract by decedent to make certain provision for plaintiffs in her will — jury trial a matter of right.

Ketcham v. Wilbur (2 cases), 218 App. Div. 350 , affirmed.

(Argued February 21, 1927;

decided March 4, 1927.)

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1926, which reversed an order of the court at a Trial Term striking the case from the calendar on the ground that plaintiff was not entitled to a jury trial. The actions were brought to recover for breach of alleged

p. 610

oral contracts whereby defendant’s testatrix agreed to make certain provisions for plaintiffs by her will.

The following question was certified in each case:

“ Is the plaintiff in this action entitled as a matter of right to a jury trial of the issues of fact raised by the pleadings herein? ”

Charles E. Spencer and George II. Sears for appellant.

James E. Newell for respondent.

Order in each case affirmed, with costs; question certified answered in the affirmative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.