Kenford Co. v. County of Erie

38 A.D.2d 781, 328 N.Y.S.2d 69, 1972 N.Y. App. Div. LEXIS 5635

Opinion

Order unanimously affirmed, without costs. Memorandum: In this action for specific performance or damages, plaintiff moved at Special Term for a change of venue because, it alleged, there is reason to believe that an impartial trial cannot be had in Brie County (CPLR 510, subd. 2). The fact that plaintiff laid the venue of its action in a proper county under CPLR 504 (subd. 1) does not constitute a waiver of its right to move for a change of venue on the grounds specified in CPLR 510 (subd. 2) or 510 (subd. 3); (De Grasse Paper Co. v. Northern N. Y. Coal Co., 206 App. Div. 789, affd. 238 N. Y. 591). It is a fundamental rule, however, that where a plaintiff seeks both equitable and legal relief in respect of the same wrong, there is no right to trial by jury (Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 396; see Matter of Garfield, 14 N Y 2d 251, 258; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac. par. 4101.36). In the present posture of this case, therefore, plaintiff has no right to a jury trial, and no showing has been made sufficient to support a determination that there is reason to believe that an impartial trial cannot be had in Brie County by a Judge without a jury. (Appeal from order of Brie Special Term denying motion for change of venue.) Present — Del Vecchio, J. P., Marsh, Witmer, Moule and Cardamone, JJ.