Shenfield v. Bernheimer — 43 N.Y. St. Rep. 383

Majority

p. 383

Abraham Shenfield, App’lt, v. Jerome Bernheimer, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Jury—Waiver of right to.

Where a plaintiff includes in his complaint a cause of action which, would entitle him to a jury trial with one in respect to which he is not. entitled to such a trial, he thereby .waives a jury trial as matter of r.ghfc as to either cause of action.

(People v. Albany <6 Susquehanna B. Go., 57 N. Y., 162 , distinguished.)

Appeal from order denying motion to frame issues upon the pleadings. "

Joseph Kohler, for app’lt; F. C. Heed, for resp’t.

The complaint alleges two cáuses of action. The first alleges a copartnership between the plaintiff and defendant and its dissolution and demands an accounting. The second is brought apparently for a balance due upon a contract to pay money. The defendant answered putting in issue material averments of the complaint and set up an affirmative defense ; and the plaintiff thereupon moved that issues be framed and sent to a jury for trial. This motion was denied, and' from the order thereupon entered this appeal is taken.

It is true that in his memorandum filed on deciding this motion the learned justice who heard the motion stated that he thought the motion was premature, and that in this respect he was mistaken; but as in the order it does not appear that the motion was decided only on this ground, thi§ court must consider that it was denied generally.

It is evident that the plaintiff is not entitled as matter of right, to a jury trial, even though he has included in his complaint a cause of action which would have given him, if sued upon alone, such right; because, having included such cause of action with one in respect to which he is not entitled to a jury trial he has waived a jury trial as a matter of right as to either cause of action. Libmann v. Manhattan R. Co., 36 St. Rep., 639 ; Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 319 ; 7 St. Rep., 203 .

The case cited by the appellant, People v. Alb. & Susq. R. Co., 57 N. Y., 162 , is not in conflict with this view. All" that that case decides is that, by combining in his complaint legal and equitable causes of action, a plaintiff cannot deprive a defendant of his constitutional right to trial by jury in respect to the legal causes of action. Therefore, the plaintiff was not entitled as matter of right to a jury trial, and we do not think that the discretion of the court was in. anywise abused. There was nothing shown which in anywise made it proper to order a jury trial; and the

p. 384

■order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.