City of New York v. Wilson & Co.

249 A.D. 391, 292 N.Y.S. 457, 1937 N.Y. App. Div. LEXIS 9601

Opinion

Per Curiam.

This is an action in ejectment brought by the city of New York to recover possession of certain filled-in land along the East river, together with damages for the detention thereof. The defendant was entitled under the Constitution of the State of New York and section 425 of the Civil Practice Act to a trial by jury. At the opening of the trial and before any witnesses were called, counsel for the defendant demanded such trial. (Civ. Prac. Act, § 426, subd. 4.) This motion was denied and the case was tried as an action in equity. The failure to grant defendant a jury trial of the issues of fact involved in this case constituted a substantial error necessitating a reversal of the judgment herein. The amendment to the prayer for relief made on the motion of counsel for the plaintiff at the opening of the trial did not change the essential character of the cause of action. (City of Syracuse v. Hogan, 234 N. Y. 457, 462.)

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., Townley, Glennon and Dore, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.