Franklin National Bank v. Capobianco

25 A.D.2d 445, 266 N.Y.S.2d 961, 1966 N.Y. App. Div. LEXIS 5102

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1966
• Status: Published

Opinion

In an action upon guarantees executed by defendants, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered May 6, 1965, which denied its motion to strike defendants’ jury demand and restore the action to the Nonjury Calendar. Order reversed, without costs, and motion granted. A loan agreement between plaintiff and defendants provided that “in the event any dispute shall arise with respect to any of the instruments executed in connection herewith * * * it [is] understood that all of the parties waive right to trial by jury and * * * any rights to interpose any counterclaims in any suit or proceeding that may be brought.” The loan agreement further provided that its provisions were incorporated into any other instruments executed in connection with it. In our opinion, the contention of defendants guarantors that plaintiff’s action upon defendants’ agreements of guarantee, which did not contain waivers of jury trials, precluded any reference to the loan agreement in determining defendants guarantors’ right to a jury trial is clearly untenable. The right to a jury trial may be waived in an instrument other than that representing the agreement upon which the action is founded. Further, we construe the language of the waiver to be applicable to any action involving defendants’ agreements of guarantee. (See Bonnie-Lassie Sportswear v. Century Factors, 283 App. Div. 702.)

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.