Freeman v. Island Discount Corp.

5 A.D.2d 778, 169 N.Y.S.2d 830, 1958 N.Y. App. Div. LEXIS 7291

Opinion

— In an action to recover damages for conversion of a motor vehicle which was sold under the foreclosure of a chattel mortgage, the appeals are (1) from an order dated October 25, 1957 which denied appellant’s motion for summary judgment and for judgment on its counterclaim pursuant to section 494 of the Civil Practice Act and (2) from an order dated October 30, 1957 which on reargument denied appellant’s motion to strike the aetion from the jury calendar and to place it on the nonjury calendar. Order dated October 25, 1957 affirmed, without costs. Order dated October 30, 1957 modified (a) by striking from the first ordering paragraph thereof “ the original determination is adhered to, and”, and (b) by striking from the second ordering paragraph thereof “ denied ” and by substituting therefor “ granted ”. As so modified, order affirmed, without costs. Respondent executed a chattel mortgage agreement which provides that all controversies between the parties shall be tried by the court without a jury and that the right to trial by jury is waived. Thereafter certain blank spaces in the agreement were filled in with respect to terms of repayment. Respondent claims that such terms were thus stated differently than those to which he had consented. No alteration was made in the provision for the waiver of a jury trial. That provision existed in printed form at the time respondent executed the instrument, and no facts sufficient to set aside the waiver are pleaded or otherwise stated.

Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.