Ryan v. Murphy

116 A.D. 242, 101 N.Y.S. 553, 38 N.Y. Civ. Proc. R. 249, 1906 N.Y. App. Div. LEXIS 2644

Opinions

Clarke, J.:

This action was brought under section 1638 of the diode of Civil Procedure, alleging that the plaintiff is the owner in fee simple absolute of certain property beyond the Twelfth avenue, as originally laid out, at Forty-ninth street in the city of blew York. She alleges that the defendants unjustly claim an estate in fee or for life to the property in question adversely to the plaintiff, and that said claim is unjust and without foundation either in fact or law and demands that it should be adjudged that they have no right or claim thereto.

The defendants, in their several answers, not only demand a dismissal of the.complaint, but claim estates in said property under a title adverse to the plaintiff, and demand affirmative relief. The case was tried at the Special 'Term of the Supreme Court, and resulted in a judgment for the plaintiff, from which judgment this appeal is taken.

Without in any way passing upon the merits, this judgment must be reversed by reason of the refusal of the Special Term to remit the case to the Trial Term for trial by jury. Section 1642-of the Code of Civil Procedure provides that “Where an issue of fact is joined in an action brought as prescribed in this article,

Footnotes

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* unless the defendant merely-demands that the complaint be dismissed, if the defendant claims an estate in said property the subsequent proceedings including-the trial, judgment and execution are the same as if it was an action of ejectment, except as otherwise expressly prescribed in this title.” Section 988 of the Code provides that an issue of fact in an action of ejectment must be tried by a jury Unless a jury trial is waived or a reference is ordered. Reading these two sections together, it would appear that all the proceedings prescribed by law in regard to suits in ejectment apply to this action, even including the three trials thereof,† were it not for the provisions of section 1646 of the Code, which says: “A new trial of said action after judgment shall not be granted as a matter of right, but the court may, in its discretion in the interest of justice, grant a new trial upon an application made by any party within one year after said judgment.” But while, by.said section,-the repeated trials as a matter of right, as provided in ejectment cases, are abrogated, there seem to be no provisions in the title interfering with the requirement as to trial by jury.

In this case there was no waiver of the right to- a jury trial. The defendants served no notice of -trial for Special Term, and upon receipt of the notice' of trial at Special Term from the plaintiff promptly returned it. Each time the case appeared upon the Special Term calendar defendants objected to its presence there, and tiled affidavits claiming that they were entitled to a jury trial. Upon the trial itself they made the same demand, and the court expressly held that they had not waived their rights in this regard. The learned court felt constrained to follow, however, a decision at Special Term in the second department, affirmed by the learned Appellate Division of that department, without opinion.' (Close v. Sanders, 107 App. Div. 622.) The facts in that ease seem to be different from those in the case at bar. That was an action to set aside certain assessments as a cloud on title, and the defendants themselves noticed the case for trial- at Special Term. - Upon a motion being made to strike the case from the Special Term calendar, all that appears is that the court said:' “ Motion denied. If any of the parties is entitled to a jury trial lie should apply for such trial under section 970 of the Code.” Upon the ground that by noticing the case for trial at Special Term the defendants had waived their right to a trial of the issues of fact by a jury, that decision was right. But this case does not present the question of the waiver. Section 970 of the Code provides that: “ Where a party is entitled by the Constitution or by express provision of law to.a trial by a jury of one or more issues of fact in an action not specified in section nine hundred and sixty-eight of this act, he may apply upon notice to the court for an order directing all'the questions z arising upon, those issues to be distinctly and plainly stated for trial accordingly.” But an action of ejectment is specified in section 968 of the act and section 1642 provides that the action under section 1638 shall be-the same as if it was an action of ejectment.

There seems to be, therefore, no escape from the conclusion that the defendants were entitled as a matter of right to the jury trial, seasonably and persistently demanded. They were, therefore, enti tied to stand upon their right and to refrain from, putting in any evidence when the court had forced upon them the form of trial other than that provided by law.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Patterson, McLaughlin and Laughlin, JJ., concurred; Ingraham, J., dissented.

Code Civ. Proc. chap. 14, tit. 1, art. 5. — [Rep.

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See Code Civ. Proc. § 1535. — Rep.