Birch Building Corp. v. Thorp

274 A.D. 888, 82 N.Y.S.2d 420, 1948 N.Y. App. Div. LEXIS 3906

Opinion

Action to foreclose a mechanic’s lien. Appellants Thorp and Paris in their answer interposed a counterclaim against the plaintiff and certain impleaded defendants and moved for a jury trial on framed issues in respect of the counterclaim. They also moved to examine before trial the plaintiff and the impleaded defendants. Prom an order denying their motion to frame issues and for a jury trial, and denying in part their motion for an examination before trial, Thorp and Paris appeal. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The general rule in equity in respect of the right to a jury trial on a legal counterclaim has been changed in respect of mechanics’ liens by section 45 of the Lien Law. (Klein, Inc., v. New Deal Building Corp., 171 Misc. 1058; Jensen on Mechanics’ Liens, p. 330.) The denial of the right to examine in respect of four of the eight items sought by appellants was a proper exercise of discretion. Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.