Crumb v. Lintern

• Decision Date: 22 January 1957
• Citation: 158 N.Y.S.2d 824,4 Misc.2d 624
• Parties: Marvin CRUMB, Plaintiff, v. Ellen LINTERN, Defendant.
• Court: New York Supreme Court

Page 824

158 N.Y.S.2d 824

4 Misc.2d 624

Marvin CRUMB, Plaintiff, v. Ellen LINTERN, Defendant.

Supreme Court, Monroe County.

Jan. 22, 1957.

Robinson, McCarthy & Williams, Rochester (Mitchell T. Williams, Rochester, of counsel), for plaintiff.

Walter S. Forsyth & Son, Rochester (Walter S. Forsyth, Rochester, of counsel), for defendant.

WITMER, Justice.

Plaintiff has moved to strike certain language from defendant's answer, and defendant has moved for a jury trial of the issue of fraud, deceit and duress. The action is for specific performance of a contract wherein defendant has agreed to sell and plaintiff agreed to buy the residence property of defendant.

Plaintiff's motion to strike is granted with respect to the following language in the answer: in paragraph No. 1, '* * * with her daughter who is a cripple. The she inherited the same from her brother who built the house in about the year 1925.'; and in the defense numbered 'III', part of the second and third lines, to wit: '* * * but that it is an ordinary, simple story and one-half cottage type house * * *'

In all other respects plaintiff's motion is denied.

In her answer defendant alleges that plaintiff procured the contract through fraud, misrepresentation, deceit and duress, and she has cross-moved herein for jury trial of that issue. This raises a more difficult problem.

Defendant contends that under Article 15, Section 500 of the Real Property Law and Sections 425, subd. 2, and 429 of the Civil Practice Act she is entitled to jury trial of the issue of fraud as a matter of right.

It has been held that an action to foreclose a mortgage is one in equity, and that the parties are not entitled to a jury trial, even though a money judgment for the deficiency may be awarded. Jamaica Savings Bank v. M. S. Investing Co., 274 N.Y. 215, 8 N.E.2d 493, 112 A.L.R. 1485; Werner v. Mohawk Condensed Milk Co., 152 App.Div. 330, 136 N.Y.S. 585; Gillett V. Warren, 258 App.Div. 847, 15 N.Y.S.2d 674. It should be noted, however, that in the Jamaica case, supra, the court divided 4 to 3, and Judges Loughran, Lehman, and O'Brien voted for jury trial. One would suppose that an action for specific performance was as much one in equity as one to foreclose a mortgage, and that the rule against jury trial would apply. Until recently such has been recognized as the law. Karp v. Twenty Three Thirty Ryer Corp., 185 Misc. 440, 56 N.Y.S.2d 783, affirmed 270 App.Div. 758, 59 N.Y.S.2d 919. In this case, 185 Misc. at page 442, 56 N.Y.S.2d at page 785, Mr. Justice Eder made the following observation:

'A suit for specific performance is an equitable remedy whereby the court by its decree compels a party to do precisely what he ought to have done without being coerced by it. Rindge v. Baker, 57 N.Y. 209, 214. Upon failure of the vendor to perform, the purchaser as vendee thereupon acquires a right to sue for specific performance; such a suit is a chose in action (Realty Holding Co. v. Donaldson, D.C., 294 F. 541, 543, affirmed 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014; Shoecraft v. Bloxham, 124 U.S. 730, 8 S.Ct. 686, 31 L.Ed. 574); plaintiff acquired the right to take advantage of this chose in action by reason of the vendor's breach, but such acquisition and suit thereon do not constitute either an estate or an interest in real property. Fowler v. Coates, 201 N.Y. 257, 263, 94 N.E. 997, 998.'

It was thought that Section 500 of the Real Property Law was 'designed to give relief to a party in possession of land where another claimed an interest in the land but had brought no suit to enforce the claim.' Porcher v. Frueauff, Sup., 82...