Hayes v. Kerr — 50 N.Y. St. Rep. 215

Majority

p. 215

Emma Hayes et al., App’lts, v. Leonard R. Kerr et al., Resp’ts.

(New York Superior Court,

General Term,

Filed January 3, 1893.)

Headnote

Fraudulent conveyance—Partition—-Practice.

An action to declare certain deeds fraudulent; to recover possession of the premises; to subject them to plaintiffs’ interests and for partition, is one for equitable relief, and such relief cannot be granted at a jury term. If there are some issues which may, of right or in the discretion of the court, be tried by jury, they should be settled and stated for trial.

p. 216

Appeal from order denying plaintiffs’ motion to strike the cause from the equity calendar.

Geo. Carlton Comstock, for app’lts;

Samuel G. Adams, for resp’ts.

This is an appeal from an order made at the equity term, denying plaintiffs’ motion to strike the cause from the calendar of the equity term, and remand it to the jury calendar. The complaint demands judgment that certain deeds be declared fraudulent and void as against the plaintiffs ; that one of the defendants be adjudged liable to surrender possession ; that all others claiming under him be forever barred from all claim ; that the premises be adjudged to be subject to the interests of the plaintiffs; that the premises be partitioned according to the respective rights of the parties, etc., etc. The action is, therefore, for equitable relief, and such relief cannot be granted at a jury term. Watson v. The Manhattan Railway Co., 53 N. Y. Superior Ct., 137. If there are some issues involved in the action as to which the plaintiffs may claim a trial by jury either as matter of right or in the discretion of the court, the plaintiffs must take the appropriate steps to have them settled and stated for trial accordingly. See Mackellar v. Rogers, 52 N. Y. Superior Ct., 468; affirmed 109 N. Y., 468 ; 16 St. Rep., 406 .

The order must be affirmed, with ten dollars costs and disbursements.

Gtldersleeve, «L, concurs.