In re the Estate of Callahan

16 Mills Surr. 492, 95 Misc. 438, 159 N.Y.S. 352

• Court: New York Surrogate's Court
• Decided: May 15, 1916
• Status: Published

Opinion

Fowler, S.—

This is a discovery proceeding in which a jury ' trial is demanded as of right. A right to a trial by jury at common law involved a legal title to property in dispute and a verdict for damages. (Matter of Silverman, 87 Misc. Rep. 571.) Here the petitioner seeks to discover property and not to recover damages. If he discovers the property, then in such discovery proceeding against the person in alleged possession he claims the property in specie. I doubt the right to a trial by jury in such a proceeding as this. At common law there was but one form of action for the recovery of specific chattel® which, like the actio ■ depositi of the Roman law, was founded on a bailment. At a later day the action of replevin, founded on wrongful distress, was extended to any wrongful taking. • The present proceeding is for a'discovery with a"subsequent equitable direction in personam to deliver up the property discovered. Equitable relief is always in personam. Assuming that -this respondent should give away the property the moment before trial, this court- could give no relief nor could it convert this proceeding into an action for trover and conversion. The p-rorceeding, in other words, would be defeated by a mere transfer. It is absurd to say that the discovery sections under the reformed Surrogates’ Code of 1914 raise up a new form of action at common law. Hew forms of action are not developed so easily. Derivatively this proceeding resembles an equity proceeding, and not one formerly recognized at common law. Only those issues formerly triable by jury by constitutional provision can be submitted to juries in this court under the new law. This is not such an one. Motion for jury trial' denied.

Motion denied.