Compact Electra Corp. v. Connell

46 A.D.2d 649, 359 N.Y.S.2d 686, 1974 N.Y. App. Div. LEXIS 4026

Opinion

Appeal from an order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts (by permission of that court), dated January 30, 1974, which affirmed an order of the Civil Court of the City of New York, County of Kings, entered August 17, 1973, granting plaintiff’s motion to strike defendant’s demand for a jury trial. Order of the Appellate Term affirmed, without costs. A jury trial was properly denied in this case upon the ground that the defendant pleaded equitable defenses and counterclaims arising out of the same transaction pleaded in the complaint. Pleading such equitable matter is sufficient under CPLR 4101 and 4102 (subd. [c]) to waive a jury trial. Under the circumstances, we do not reach the question of whether the alleged waiver of the jury trial in the contract was valid. Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Christ, JJ., concur.