Bowery Bank v. Martin — 40 N.Y. St. Rep. 646

Majority

p. 646

The Bowery Bank of New York, Resp’t, v. Mahlon C. Martin et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Jury—Equity actions.

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 § 968 of the Code and the action must be tried before a jury.

Appeal from order striking case from the circuit calendar, and sending it to special term for trial.

L. G. Waehner, for app’lts ; Abram, Kling, for resp’t.

In this action the complaint demands judgment for a sum of money only. In the case of Glenn v. Lancaster, 109 N. Y., 641 ; 15 N. Y. State Rep., 196, the court state that § 968 provides that every issue of 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.” We know of no exception that can be engrafted 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 ten dollars costs and disbursements to abide the event, and the case remitted to the circuit.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.