Douglas A. Edwards, Inc. v. Lax

85 A.D.2d 509, 444 N.Y.S.2d 103, 1981 N.Y. App. Div. LEXIS 16278

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1981
• Status: Published

Opinion

Order, Supreme Court, New York County (Albert Williams, J.), entered April 22,1981, which granted respondent’s motion for a jury trial and granted respondent’s request as to the framing of issues to be tried, unanimously modified, on the law, the facts, and in the interests of justice, without costs, to the extent of vacating the second decretal paragraph of the order, which specified the issues to be determined, and the order is otherwise affirmed. Although the action before us is denominated as one seeking a declaratory judgment, the basic nature of the lawsuit is one to recover commissions resulting from a real estate transaction involving the efforts of appellant and respondent. In this posture, the critical factual issues should be resolved by a jury. (Siegel, New York Practice, § 439; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4101.39; cf. Solnick v Whalen, 49 NY2d 224.) We are not satisfied that the said issues as framed are presented in neutral and unslanted terminology and hence we vacate those issues as written. We leave to nisi prius, upon due application, the framing of issues appropriate to the contentions and the pleadings of the litigants, which might include, among other questions, whether the appellant hired Lax in connection with this real estate transaction, and if so, what was the division of the commission agreed upon by appellant and respondent. Concur — Kupferman, J. P., Birns, Ross, Lupiano and Silverman, JJ.