Salsman v. Salsman

New York Supreme Court

Salsman v. Salsman

15 Misc. 2d 842, 183 N.Y.S.2d 389, 1959 N.Y. Misc. LEXIS 4141

DecidedMarch 12, 1959

StatusPublished

This text of 15 Misc. 2d 842 (Salsman v. Salsman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salsman v. Salsman, 15 Misc. 2d 842, 183 N.Y.S.2d 389, 1959 N.Y. Misc. LEXIS 4141 (N.Y. Super. Ct. 1959).

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Opinion

Walter E. Hart, J.

In an action for legal separation brought by plaintiff wife, in which the first four of the five causes of action pleaded in the complaint charge respectively, cruel and inhuman treatment, failure to support, adultery, and abandonment, the defendant moves for an order directing a jury trial upon all of the issues raised by the pleadings.

Granting that the fifth cause of action set out in the complaint states a cause of action in ejectment, as contended by defendant, and that the first counterclaim, also asserted as a separate defense, contained in the defendant’s amended answer, seeks the determination of a claim to real property, both of which causes, upon joinder of issue, ordinarily would entitle defendant as a matter of statutory right to a jury trial upon the issues of fact raised thereby (Civ. Prac. Act, § 424, § 425 [as amd. by L. 1943, ch. 561], § 429), it is settled that defendant has no similar right to a jury trial of the issues raised by the causes of action for legal separation pleaded in plaintiff’s complaint. (Wise v. Wise, 159 App. Div. 575; Packard v. Packard, 88 App. Div. 339.) Since the defendant seeks a jury trial upon all the issues raised by the pleadings and expressly indicates in his supporting affidavit that he does not desire a jury trial solely as to the conflicting claims of the parties to the subject realty, the disposition of the instant motion depends upon whether the court should, in the exercise of its discretion, grant the relief prayed for as to the issues arising out of the [843]*843causes of action for legal separation (Civ. Prac. Act, § 430). (See Gramling v. Gramling, 192 Misc. 285.)

Under the circumstances here present, the court is of the view that the motion should be denied. (See Riesenberger v. Sullivan, 1 A D 2d 1049.)

While the court does not hold it to be a factor determinative of the instant motion, it takes note of the uncontradicted assertion made in the opposing affidavit that defendant has failed to make due payments of alimony since December, 1957. It would appear that the defendant, in seeking to have the court exercise its discretion in his favor, would have sought to remedy such failure before making the instant application.

Motion denied. Submit order.

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Walter E. Hart, J.

In an action for legal separation brought by plaintiff wife, in which the first four of the five causes of action pleaded in the complaint charge respectively, cruel and inhuman treatment, failure to support, adultery, and abandonment, the defendant moves for an order directing a jury trial upon all of the issues raised by the pleadings.

Granting that the fifth cause of action set out in the complaint states a cause of action in ejectment, as contended by defendant, and that the first counterclaim, also asserted as a separate defense, contained in the defendant’s amended answer, seeks the determination of a claim to real property, both of which causes, upon joinder of issue, ordinarily would entitle defendant as a matter of statutory right to a jury trial upon the issues of fact raised thereby (Civ. Prac. Act, § 424, § 425 [as amd. by L. 1943, ch. 561], § 429), it is settled that defendant has no similar right to a jury trial of the issues raised by the causes of action for legal separation pleaded in plaintiff’s complaint. (Wise v. Wise, 159 App. Div. 575; Packard v. Packard, 88 App. Div. 339.) Since the defendant seeks a jury trial upon all the issues raised by the pleadings and expressly indicates in his supporting affidavit that he does not desire a jury trial solely as to the conflicting claims of the parties to the subject realty, the disposition of the instant motion depends upon whether the court should, in the exercise of its discretion, grant the relief prayed for as to the issues arising out of the [843]*843causes of action for legal separation (Civ. Prac. Act, § 430). (See Gramling v. Gramling, 192 Misc. 285.)

Under the circumstances here present, the court is of the view that the motion should be denied. (See Riesenberger v. Sullivan, 1 A D 2d 1049.)

While the court does not hold it to be a factor determinative of the instant motion, it takes note of the uncontradicted assertion made in the opposing affidavit that defendant has failed to make due payments of alimony since December, 1957. It would appear that the defendant, in seeking to have the court exercise its discretion in his favor, would have sought to remedy such failure before making the instant application.

Motion denied. Submit order.

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15 Misc. 2d 842, 183 N.Y.S.2d 389, 1959 N.Y. Misc. LEXIS 4141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salsman-v-salsman-nysupct-1959.

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