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Cantoni v. Forster

33 N.Y.S. 565 Court N.Y. Super. Ct. Decision date 1895-05-06 English

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p. 565
(12 Misc. Rep. 343.)
CANTONI v. FORSTER et al.
(Superior Court of New York City, General Term.
May 6, 1895.)

Headnote

Jury—Trial by—Equitable Issues.
The fact that an equitable action will involve a conflict of evidence Is not ground for granting a trial by jury.
Appeal from special term.
Action by Salvatore Cantoni against Elsa Forster and another. From an order denying a motion for an order settling issues for trial by jury, defendants appeal.
Affirmed.
The opinion of McADAM, J., at special term, is as follows:
The action is of purely equitable cognizance, and the framing of issues therein entirely matter of discretion. The defendant is not entitled to a jury trial, either by constitutional considerations, or those flowing from express provisions of law, and no right is violated by the denial thereof. Oolie v. Tifft, 47 N. Y. 119 ; Colman v. Dixon, 50 N. Y. 572 ; Powell v. Waldron, 89 N. Y. 328 ; Wright v. Nostrand, 94 N. Y. 31 ; Carroll v. Deimal, 95 N. Y. 252 ; Acker v. Leland, 109 N. Y. 5 , 15 N. E. 743 ; Randall v. Randall, 114 N. Y. 499 , 21 N. E. 1020 ; Lynch v. Railroad Co., 129 N. Y. 274 , 29 N. E. 315 ; Shepherd v. Railroad Co., 131 N. Y. 215 , 30 N. E. 187 ; Church v. Kelsey, 121 ü. S. 282, 7 Sup. Ct 897 ; Cattle Co. v. Mann, 130 U. S. 69 , 9 Sup. Ot 458; Cates v. Allen, 149 U. S. 451 , 13 Sup. Ct. 883 , 977. If the action were to be ordered on the jury calendar solely because it would probably involve a conflict of evidence, it is difficult to imagine a cause which ought to be returned on the equity calendar; for, aside from demurrers, every trial thereat involves more or less conflict Especially is this true in suits to set aside transfers as fraudulent, elevated railway controversies, and the like. There is nothing in the present contention which necessitates calling in the aid of a jury, or which even suggests that a decision equally speedy and as satisfactory could not be reached without such assistance. For these reasons the defendant’s application must be denied, with §10 costs.
p. 566
Argued before SEDGWICK, C. J., and FREEDMAN, J.
Samuel H. Randell, for appellants.
Charles W. Brooke, for respondent.

The order should be affirmed, with $10 costs and disbursements, upon the opinion filed below.

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