Slater v. Berger

50 A.D.2d 945, 378 N.Y.S.2d 644, 1975 N.Y. App. Div. LEXIS 11886

Opinion

— In an action inter alia for an accounting, the appeal is from an order of the Supreme Court, Kings County, dated July 17, 1975, which conditionally denied a motion to vacate the note of issue and to strike the action from the Trial Calendar. Order affirmed, without costs. Although the note of issue and statement of readiness were filed prematurely, it appears that the case is now ready for trial and should proceed forthwith. The issue as to defendant’s right to a jury trial was not raised at Special Term; it has been raised in the first instance on appeal. Notwithstanding such fact, we find that the relief sought lies in equity and that a trial by jury is thus not warranted (CPLR 4101). Hopkins, Acting P. J., Martuscello, Cohalan, Brennan and Munder, JJ., concur.