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Bowery Bank v. Martin

16 N.Y.S. 73 Court N.Y. Gen. Term Decision date 1891-10-16 English

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p. 73
Bowery Bank v. Martin et al.
(Supreme Court, General Term, First Department.
October 16, 1891.)

Headnote

Jury Trial—Right to—Action to Recover Money.
Under Code Civil Proc. N. Y. § 968, providing that, in actions in which the complaint demands judgment for a sum of money only, the issues of fact must be tried by a jury, an action against executors of a deceased partner, to recover from his estate the amount of promissory notes made by the firm, on the ground that the surviving partners are insolvent, is properly placed on the circuit calendar for trial by a jury. Glenn v. Lancaster, 109 N. Y. 641 , 16 N. E. Rep. 484 , followed.
Appeal from special term, New York county.
Action by the Bowery Bank of New York against Mahlon C. Martin and others, as executors of Christopher Meyer, deceased. The complaint alleged that said Christopher Meyer, Henry S. Ives, and George H. Stayner had been copartners under the firm name of Henry S. Ives & Co., and that said Ives and Stayner, the surviving partners, were utterly insolvent and unable to pay their debts; and it set forth two promissory notes made by the firm, and alleged that a certain sum of money was due to plaintiff on each of said notes, and demanded judgment for the amount thereof. The answer was a general denial. Plaintiff placed the cause on the general circuit calendar for trial by jury, but afterwards placed it on the special term calendar for trial as an equity action, and on his motion an order was made striking the case from the circuit calendar. From that order defendants appeal.
Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
Lawrence & Waehner, (L. C. Waehner, of counsel,) for appellants. Abram, Kling, for respondent.

In this action the complaint demands judgment for a sum money only. case of Glenn v. Lancaster, 109 N. Y. 641 , 16 N.

p. 74
•fact must be tried by a jury unless a jury trial is waived, or a reference directed, “in an action in which the complaint demands judgment for a sum of money only.”[1] We know of no exception that can be ingrafted upon this provision. While, in equity actions, relief may sometimes be granted by judgments for money only, yet, where that is the only relief demanded, and no other relief sought, the case is brought within the section, and the action must be tried before a jury. This decision covers the case at bar, and is controlling upon us, the complaint in this action demanding judgment for a sum of money only. The order should therefore be reversed, with $10 costs and disbursements, to abide the event, and the case remitted to the circuit. All concur.

1 Code Civil Proc. N. Y. § 968.

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