Luria's Estate, In re

• Citation: 63 Misc.2d 675,313 N.Y.S.2d 12
• Parties: In re LURIA'S ESTATE. In the Matter of the Petition of KINGS COUNTY LAFAYETTE TRUST COMPANY to render and settle its account as Executor of Max A. Luria, Deceased. Surrogate's Court, Kings County
• Decision Date: 15 July 1970
• Court: New York Surrogate Court

Page 12

313 N.Y.S.2d 12

63 Misc.2d 675

In re LURIA'S ESTATE In the Matter of the Petition of KINGS COUNTY LAFAYETTE TRUST COMPANY to render and settle its account as Executor of Max A. Luria, Deceased.

Surrogate's Court, Kings County.

July 15, 1970.

Seth Rubenstein, Brooklyn, for Kings County Lafayette Trust Co., petitioner.

Shultz & Garber, New York City, for Edna W. Luria, objectant.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for Charitable Beneficiaries.

Stroock & Stroock & Lavan, New York City, for The Jewish Theological Seminary of America.

Lillian Kaltman, New York City, for Hadassah.

Murray Rubien, New York City, for American Society for Technion-Israel Institute of Technology, Inc.

Townsend & Lewis, New York City, for American ORT Federation, Inc.

Alfred J. Bedard, Roslyn, for Ensomme Gamles Vaern.

NATHAN R. SOBEL, Surrogate.

The broad issue to be determined is the right to a jury trial in the Surrogate's Court. This is a recurrent issue and a perplexing one not alone for this Court but for all Courts. (See 4 Weinstein-Korn-Miller, N.Y. Civ. Practice, §§ 4101.1 to 4101.39)

Because of the decision of the Court of Appeals in Matter of Garfield (14 N.Y.2d 251, 251 N.Y.S.2d 7, 200 N.E.2d 196 (1964)), the problem is deserving of some general discussion before reaching the specific issues raised by the demand in this proceeding. That decision to a substantial extent destroyed the bases for many earlier decisions from these courts.

The point of beginning must be the Constitution (Art. I, § 2) and of necessity its 'heretofore' clause.

The first Constitution, that of 1777, provided in article XLI:--'Trial by jury, in all cases in which it hath heretofore been used * * * shall * * * remain inviolate forever'. Perhaps as adopted in 1777 there was some justification for this technique of incorporation by reference. The plain purpose clearly was to include in the constitutional guarantee all 'CASES' IN WHICH UNDER THE COMMON LAW THEREtofore applicable in the colony of New York the procedure of jury trial had been customarily 'used'. Probably, the full extent of such usage was not known to the delegates.

At the Conventions which followed, those of 1821, 1846 and 1894, the delegates adopted the tempting, easy device of continuing the heretofore clause without change. The net effect, probably unintentional as far as the proceedings disclose, was to include in the constitutional guarantee those classes of cases in which the right to jury trial had been extended by statute during the intervening years from 1777 to 1894.

Between 1894 and 1938, the year of the next Convention, a great many jury trial issues reached our appellate courts. The 'freeze' problem was called to the attention of the delegates to the 1938 Convention by the Committee created to make preliminary study of constitutional issues.

The Constitutional Convention of 1938 met the problem half-way and this almost without discussion or debate (2 Rev. Record 1278). What emerged after revision was a modified heretofore clause--'Trial by jury in all cases in which it has Heretofore been quaranteed by constitutional provision shall remain inviolate forever--'. The net effect of this modified provision was to continue under the constitutional guarantee all common law rights to jury trial prior to 1777 and all such statutory rights enacted prior to 1894. Excluded however from the guarantee were all new statutory rights to jury trial enacted between the years 1894 to 1938 (Matter of Leary, 175 Misc. 254, 23 N.Y.S.2d 13, affd. Matter of Werner v. Reid, 260 App.Div. 1000, 24 N.Y.S.2d 1000, affd. 285 N.Y. 693, 34 N.E.2d 383). More important, however, the new provision gave assurance to the Legislature that it might extend the right of trial by jury After 1938 into new fields without risk that the next Convention would automatically give constitutional protection to such statutory extensions.

Merely as a footnote it is observed that at the 'unsuccessful' Convention of 1967 there was presented by the writer of this opinion a modification which would have gone the whole way (Prop. #1349 § 18) by declaring affirmatively rather than by incorporation by obscure reference, the classes of cases in which trial by jury should be guaranteed by the Constitution.

In summary of the foregoing there are now two classes of civil cases in which the right to trial by jury is guaranteed by the Constitution; and a third group of cases where there exists a statutory right (enactments after 1894) to trial by jury (CPLR 4101(3)).

1. The classes of cases in which juries were 'heretofore used' in the Colony prior to 1777 are obscure and uncertain. It is generally agreed however that the ordinary cases in which such right was available are those specified in CPLR 4101(1) and (2) (with the exception of those under Art. 15, Real Property Actions and Proceedings Law). These include actions in which a party demands And sets forth facts which would permit a judgment for a sum of money Only (the largest class; see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., § 4101.11); also included are actions for ejectment; for dower; for waste; for abatement of and damages for a nuisance and to recover a chattel (replevin).

Most issues of the right to trial by jury in the courts arise in actions which fall within the classes of cases enumerated above. The problem in each case is to determine whether juries were commonly used for the class of actions in the Colony of New York prior to 1777.

2. A good many statutes were enacted between 1777 and 1894 which extended the right to trial by jury. These became constitutional rights by virtue of the heretofore clauses adopted by the Conventions of 1821, 1846 and 1894. Among the more common cases were actions for divorce, annulment, partition, claims to real property, mandamus, and more important for this discussion 'discovery' proceedings, i.e., claims by personal representatives to recover property belonging to the estate. The latter was added in 1870 (L.1870, c. 359, § 7, c. 394; later to become S.C.A. §§ 205, 206 now SCPA 2103, 2104). All of the above statutory rights became constitutional guarantees by virtue of successive adoptions by subsequent Conventions of the heretofore clause.

It should be noted that at the time of such incorporation by reference jury trials were not held in the Surrogate's Court. A case requiring such trial was transferred to the County Court (L.1847, c. 280, § 45) or in the Supreme Court as later provided. The 1914 Revision of Chapter 18 of the Code of Civil Procedure authorized Surrogates to try such cases and as well all common law issues in which trial by jury had been previously authorized in other courts (L.1914, c. 443). One of the problems, discussed Infra, is whether the Constitution requires jury trials irrespective of the court in which the action is brought.

3. Since 1894 statutes have added other classes of cases to the list where jury trial is required. For the purpose of this discussion, the one which needs to be mentioned is 'any controverted question of fact' arising in a proceeding for the probate of a will (SCPA 502 formerly S.C.A. § 68(1) as derived from L.1914, c. 443, and C.C.P. § 2547). This is probably a statutory right though it may have existed at common law. It has been held to include only Probate issues, not issues such as status, kinship, domicile, right of election, etc. (Matter of Littman, 15 Misc.2d 430, 182 N.Y.S.2d 90; Matter of Adler, 3 Misc.2d 631, 155 N.Y.S.2d 823; In re Kahn's Estate, Sur., 106 N.Y.S.2d 213; Matter of Davis, 136 Misc. 400, 241 N.Y.S. 102; Matter of Doherty, 155 Misc. 396, 279 N.Y.S. 401; Matter of Erlanger, 136 Misc. 784, 242 N.Y.S. 257, affd. 229 App.Div. 778, 242 N.Y.S. 910; Matter of Thompson, 204 App.Div. 182, 198 N.Y.S. 374; but cf. In re Hamilton's Estate, 220 App.Div. 536, 222 N.Y.S. 73).

Parenthetically, a fourth category may be noted. Amendments to the Constitution have Removed from the constitutional guarantee workmen's compensation claims (Art. I § 18) and claims against the State (Art. VI § 18, subd. b).

The statute governing trial by jury in the Surrogate's Court is SCPA 502(1) (formerly S.C.A. § 68):

'A party is entitled to trial by jury in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right of trial by jury and in any proceeding for the probate of a will in which such question of fact arises, if duly demanded.'

This provision says nothing more (with the exception of probate issues) than does the heretofore clause of the Constitution.

Each time a demand is made for trial by jury, the Surrogate is required to determine whether such right was available by customary usage in the Colony or had become a constitutional right by incorporation of statutory rights enacted between the years 1777 and 1894.

In some dozen odd cases prior to Garfield, supra, such determinations by Surrogates presented close issues. These were appealed. But no helpful rationale emerged as a result of appellate review.

A reading of these decisions establishes the basic problem.

Is it the nature and substance of the case which determines whether a jury trial is guaranteed?

Or, is it the court in which it is brought or the nature of the proceeding in which it is advanced, which is determinative?

For one example, a claim against a decedent for goods sold or services performed is a common law action for money only which is encompassed within the constitutional guarantee. If advanced in another court the parties would be entitled to a jury trial. Does it matter that the creditor presents his claim against the estate in the Surrogate's Court and advances it in the accounting proceeding? (see e.g. Matter of Woodward, 105 Misc. 446, 173 N.Y.S. 556, affd. 188 App.Div. 888, 175 N.Y.S. 926; Matter of Beare, 122 Misc. 519, 203 N.Y.S. 483, affd. 214 App.Div. 723, 209 N.Y.S. 793; Matter of...