Cohen v. Cohn

18 A.D.2d 896, 237 N.Y.S.2d 807, 1963 N.Y. App. Div. LEXIS 4352

Opinion

Order, entered on January 14, 1963, denying jury trial of certain causes of action and setting case down for immediate trial, unanimously modified on the law and the facts and as a matter of discretion, and without costs to either party, by granting ¡ a jury trial as to the issues raised in the second cause of action, the same to be held immediately after the trial by the court of the remaining issues, and by eliminating from the order the direction to the Clerk to place the action at the head of the Equity Calendar for January 18, 1963, and directing that the ca,se be marked ready and sent out for trial. All applications for a preference in the trial of an equity case must be made in Trial Term Part II, and Special Term has no authority to make such a disposition (Special Term Rules, rule IX, New York County Supreme Court). Moreover, no one other than the Judge holding Trial Term Part II may direct how a case is to be marked on thd call of the calendar. The second cause of action is, in effect, one for money had and received and either party may have a jury trial. Where certain issues are properly for the disposition of the court alone and others for the jury, the order of trial is a matter of discretion to be exercised in accord with what will make for the most orderly and expeditious determination in the particular case. Settle order on notice. Concur — Botein, P. J., Breitel, Valente, Steuer and Bastow, JJ.