In re Shulman

43 A.D.2d 929, 353 N.Y.S.2d 181, 1974 N.Y. App. Div. LEXIS 5622

Opinion

Order, Supreme Court, Bronx County, entered on September 5, 1973, granting respondents’ motion to strike the jury demand herein and for other relief, unanimously modified, on the law, to the extent of denying the motion to strike the jury demand with respect to the discovery proceeding initiated pursuant to SCPA 2103 (subd. 1), and, otherwise affirmed, without costs and without disbursements. This court has already held herein that “petitioner’s proof [in the discovery proceeding] was sufficient to raise an issue of title to the money and other personal property described in the petition”. (33 A D 2d 666.) The issue of title is formally raised in the answer thereafter served. It follows that appellant is entitled to a jury trial thereon (Matter of Comfort, 234 App. Div. 19). Nor has appellant waived her right to such jury trial. She did pot join the equitable claim asserted by her in the Supreme Court with the legal claim asserted by her in the Surrogate’s Court. This court, not appellant, directed that both claims be tried in the Supreme Court, Bronx County. Concur — -Nunez, J. P., Kupferman, Murphy, Capozzoli and Lane, JJ.