New York Life Insurance & Trust Co. v. Mayor — 6 N.Y. St. Rep. 656

Majority

p. 656

The New York Life Insurance and Trust Company, as Trustee of C. E. Delaplaine, Resp’t, v. The Mayor, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed March 3, 1887.)

Headnote

Ejectment—Trial by jury—Form op complaint.

Though in form the suit is not an action of ejectment, yet if it is so in substance, the defendants are entitled to a trial by jury. This constitutional right is not affected by reason of there being a prayer for equitable relief.

Appeal from order denying motion for trial by jury.

F. A Irish, for app’lt; L. A. Chase, for resp’t.

The plaintiffs in their complaint allege that they are the owners in fee of a certain wharf and bulkhead, of which they nave been deprived by the action of the defendants. and which they seek to have restored to their possession. They also demand damages in the sum of $500,000 on account of the unlawful taking of said wharf and. bulkhead and $100,000 for loss of wharfage.

If this suit is not in form an action of ejectment, it is such in substance, and in view of the form of the complaint we think the defendants are entitled to a jury trial. The circumstance" that there is a prayer for equitable relief does not effect this constitutional right.

The order should be reversed and the motion granted with $10 costs and disbursements to abide the final' event.