Schroeder v. Ziring

New York Supreme Court

Schroeder v. Ziring

183 Misc. 813, 53 N.Y.S.2d 574, 1944 N.Y. Misc. LEXIS 1454

DecidedSeptember 12, 1944

StatusPublished

This text of 183 Misc. 813 (Schroeder v. Ziring) 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

Schroeder v. Ziring, 183 Misc. 813, 53 N.Y.S.2d 574, 1944 N.Y. Misc. LEXIS 1454 (N.Y. Super. Ct. 1944).

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Opinion

Kleinfeld, J.

The defendant Ziring moves for a jury trial, pursuant to sections 425 and 426 of the Civil Practice Act, of counterclaims of codefendants, based on trade acceptances.

For the purposes of this application, these counterclaims must be treated as separate causes of action, and with the same effect as though they had been pleaded in a complaint. Unless the moving party has waived his right to trial by jury, he is entitled to the relief sought. While the case appeared on the Special Term Calendar for Trials on June 21, 1944, there was no “ production of any evidence ” which might have effected a waiver pursuant to subdivision 4 of section 426 of the Civil Practice Act. Nor has there been any waiver by any of the other methods outlined in section 426 of the Civil Practice Act. It is urged, further, that the right to trial by jury has been waived by the pleading of equitable defenses. It appears to he well established that an application for equitable relief constitutes a waiver of jury trial, but there is no waiver where equitable defenses are pleaded. (Susquehanna S. S. Co. v. Anderson & Co., 239 N. Y. 285.) The motion is granted, and the trial at Special Term is stayed, pending the jury trial herein directed. Settle order on notice.

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Kleinfeld, J.

The defendant Ziring moves for a jury trial, pursuant to sections 425 and 426 of the Civil Practice Act, of counterclaims of codefendants, based on trade acceptances.

For the purposes of this application, these counterclaims must be treated as separate causes of action, and with the same effect as though they had been pleaded in a complaint. Unless the moving party has waived his right to trial by jury, he is entitled to the relief sought. While the case appeared on the Special Term Calendar for Trials on June 21, 1944, there was no “ production of any evidence ” which might have effected a waiver pursuant to subdivision 4 of section 426 of the Civil Practice Act. Nor has there been any waiver by any of the other methods outlined in section 426 of the Civil Practice Act. It is urged, further, that the right to trial by jury has been waived by the pleading of equitable defenses. It appears to he well established that an application for equitable relief constitutes a waiver of jury trial, but there is no waiver where equitable defenses are pleaded. (Susquehanna S. S. Co. v. Anderson & Co., 239 N. Y. 285.) The motion is granted, and the trial at Special Term is stayed, pending the jury trial herein directed. Settle order on notice.

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Bluebook (online)

183 Misc. 813, 53 N.Y.S.2d 574, 1944 N.Y. Misc. LEXIS 1454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schroeder-v-ziring-nysupct-1944.

Opinion

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