Mackellar v. Rogers

• Decision Date: 05 June 1888
• Parties: MACKELLAR v. ROGERS et al.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 468

17 N.E. 350

MACKELLAR

v.ROGERS et al.

Court of Appeals of New York.

June 5, 1888.

Appeal from general term, superior court, city of New York.

Action by Thomas MacKellar against George W. Rogers and others to foreclose a mortgage. Judgment for plaintiff. Defendants appeal. Code Civil Proc. N. Y. § 968, provides that an action in which the complaint demands judgment for a sum of money only must be tried by a jury, unless jury trial is waived, or reference directed. Id. § 970, provides that ‘where a party is entitled * * * to a trial, by a jury, of one or more issues of fact, in an action not specified in section 968, he may apply, upon notice, to the court for an order directing * * * issues * * * to be stated for trial.’

Martin J. Keogh, for appellant.

George M. MacKellar, for respondent.

DANFORTH, J.

The action was for the foreclosure of a mortgage. The answer expressly admitted the material allegations of the complaint, but set forth new matter, characterized it as a counter-claim, and demanded an affirmative judgment for $31,115.57, money due, besides $20,000 damages for breach of contract. The plaintiff, by reply, put these matters in issue. The defendant gave notice that the issues of fact so joined would be brought to trial at the then next special term, and at the same time a like notice was given by the plaintiff. At the time mentioned both parties appeared, and, as the record states, the cause having been reached for trial, counsel for defendant ‘demanded a trial by jury of the counter-claim set up in his answer, as his constitutional and legal right.’ This application was denied on the ground ‘that the proper mode of applying for a jury trial under such circumstances is upon notice of motion to have special issues sent to a jury for trial.’ The defendant then asked leave to make application at special term for the framing of issues, but it was denied. To grant or refuse such request was clearly a matter of discretion, and its exercise is not the subject of review in this court. The trial, however, went on and resulted in a judgment for the plaintiff, according to the prayer of his complaint. It was affirmed by the general term, and we have only to inquire whether the defendant was, under the circumstances, entitled to a jury trial as a matter of right.

The appellant's contention rests upon section 974 of the Code of Civil Procedure, which provides that ‘where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment.’ The conditions upon which the right depends exist in favor of the defendant, but that right is not absolute or unqualified; it is relative and limited, and, in the words of section 974, ‘within’ certain ‘foregoing sections' only is ‘a counter-claim to be deemed an action.’ We find nothing there which required a court to sanction the course pursued by the defendant. If tolerated, it would enable a person sued to postpone and delay the plaintiff in the prosecution of a just cause until, at a convenient time, and before another tribunal, he had presented a cause of action subsequently brought into court, and the determination of which has no necessary connection with the plaintiff's demand in suit. It would, moreover, permit him to do this after selecting a different court for the trial of his issue, and evade that trial at the moment it was to commence by the expression of his mere wish to go into a different forum, thus putting his adversary at defiance, and interrupting the court in the transaction of business which he himself had in a formal manner brought before it. It is to be conceded that the mode of trial of the issue tendered by his...