Epstein v. Paganne Ltd.

39 A.D.2d 855, 333 N.Y.S.2d 187, 1972 N.Y. App. Div. LEXIS 4394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on February 22,1972, denying appellant’s motion for an order striking the jury demand filed on behalf of the respondents, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondents $30 costs and disbursements of this appeal. Respondent, in action numbered 1, seeks in addition to money damages “ an accounting from the defendants of the merchandise sold by said defendants in the entire territory or territories specified in the said contract between the parties ”. Clearly, therefore, the complaint seeks other than a sum of money only (CPLR 4101, subd. 1). By joining an equitable with a legal claim the plaintiff thereby waived its right to trial by jury and, accordingly, the motion to strike the jury demand should have been granted. (See Di Menna v. Cooper & Evans Co., 220 N. Y. 391; L. C. J. Realty Corp. v. Back, 37 A D 2d 840; Leav v. Weitzner, 268 App. Div. 466.) The decision in Vinlis Constr. Corp. v. Roreck (23 A D 2d 895) relied upon by Special Term in denying the motion, does not hold otherwise. In that case it was merely held that plaintiff’s joinder of legal and equitable claims in a single complaint could not in and of itself deprive the defendants of their right to a trial by jury on issues so triable. Concur — Stevens, P. J., Markewich, Murphy, Tilzer and Capozzoli, JJ.