Hayes v. Kerr

21 N.Y.S. 793

• Court: The Superior Court of the City of New York and Buffalo
• Decided: January 3, 1893
• Status: Published

Opinion

FREEDMAN, J.

This is an appeal from an order made at the equity term denying plaiiitiffs’ motion to strike the cause from the calendar of the equity term and remand it to the jury calendar. The complaint demands judgment that certain deeds be declared fraudulent and void as against the plaintiffs; that one of the defendants be adjudged liable to surrender possession; that all others claiming under him be forever barred from all claim; that the premises be adjudged to be subject to the interests of the plaintiffs; that the premises be partitioned according tó the respective rights of the parties, etc. The action is therefore for equitable relief, and such relief cannot be granted at a jury term. Watson v. Railway Co., 53 N. Y. Super. Ct. 137. If there are some issues involved in the action as to which the plaintiffs may claim a trial by jury, either as matter of right or in the discretion of the court, the plaintiffs must take the appropriate steps to have them settled and stated for trial accordingly. See Mackellar v. Rogers, 52 N. Y. Super. Ct. 468, affirmed 109 N. Y. 468, 17 N. E. Rep. 350. The order must be affirmed,, with $10 costs and disbursements.