Geller v. Julien

• Decision Date: 18 May 1976
• Citation: 383 N.Y.S.2d 334,52 A.D.2d 808
• Parties: James A. GELLER, Plaintiff-Respondent, v. Alfred JULIEN et al., Defendants, and Ellias C. Hoppenfeld, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 334

383 N.Y.S.2d 334

52 A.D.2d 808

James A. GELLER, Plaintiff-Respondent, v. Alfred JULIEN et al., Defendants, and Ellias C. Hoppenfeld, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 18, 1976.

E. Thebner, New York City, for plaintiff-respondent.

Ellias C. Hoppenfeld, pro se.

Before STEVENS, P.J., and KUPFERMAN, LUPIANO, LANE and LYNCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County entered January 14, 1976, denying the defendant-appellant Hoppenfeld's motion for an order striking the action from the jury calendar, unanimously reversed on the law, and the motion granted, without costs and without disbursements.

This Court has previously designated trial counsel Alfred Julien as stakeholder of one-third of the counsel fee derived from litigation against the City of New York, which was settled for the sum of $500,000. Geller v. Julien, 50 A.D.2d 747, 377 N.Y.S.2d 11 (1975). The defendant-appellant Hoppenfeld was the attorney originally retained in the matter, and the controversy is between him and the plaintiff Geller who has a claim against said defendant-appellant for any work he may have done in the case at the request of the defendant-appellant.

There being a joinder of claims for equitable and legal relief, a jury trial must be considered waived. Paterno & Sons, Inc. v. Town of New Windsor, 43 A.D.2d 863, 351 N.Y.S.2d 445 (2d Dept.1974); Epstein v. Paganne Ltd., 39 A.D.2d 855, 333 N.Y.S.2d 187 (1st Dept.1972).