Vincent v. Cooperman

283 A.D. 812, 128 N.Y.S.2d 634, 1954 N.Y. App. Div. LEXIS 5400

Opinion

In an action for an injunction and money damages, on the day when the case came on for trial at Special Term, it appeared that the ground for equitable relief no longer existed and that it was desired to continue the action for damages only. On September 9, 1953, an order was made transferring the cause to the Trial Term calendar and granting respondent leave to serve and file a demand for a jury. On October 19, 1953, an order was made denying defendant’s motion to vacate that part of the order of September 9, 1953, which gave leave to serve and file a demand for a jury. Defendant appeals from the order of October 19, 1953, and from so much of the order of September 9, 1953, as grants leave to serve and file the demand for a jury. Order dated- October 19, 1953, reversed, with $10 costs and disbursements, and motion granted to the extent of striking the second ordering paragraph from the order dated September 9, 1953, without costs. Order dated September 9, 1953, modified accordingly, without costs. By seeking equitable relief, the plaintiff waived or lost the right to a jury trial, and the court is without power to relieve him of the operative effect of such waiver under the circumstances of this case. Such power is not conferred by sections 426, 429 or 430 of the Civil Practice Act. Nolan, P. J., Adel, Wenzel, MaeCrate and Murphy, JJ., concur. [204 Misc. 553.]