Kenford Co. v. County of Erie

Appellate Division of the Supreme Court of New York

Kenford Co. v. County of Erie

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 1972

StatusPublished

Cited by6 cases

This text of 38 A.D.2d 781 (Kenford Co. v. County of Erie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kenford Co. v. County of Erie, 38 A.D.2d 781, 328 N.Y.S.2d 69, 1972 N.Y. App. Div. LEXIS 5635 (N.Y. Ct. App. 1972).

Pincite

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.

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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.

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Bluebook (online)

38 A.D.2d 781, 328 N.Y.S.2d 69, 1972 N.Y. App. Div. LEXIS 5635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenford-co-v-county-of-erie-nyappdiv-1972.

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