Riesenberger v. Sullivan, 1

• Decision Date: 28 May 1956
• Docket Number: No. 1,1
• Citation: 1 A.D.2d 1049,152 N.Y.S.2d 783
• Parties: Austin G. RIESENBERGER, Appellant, v. Gladys SULLIVAN, also known as Gladys Riesenberger, Respondent. (Appeal) Supreme Court, Appellate Division, Second Department
• Court: New York Supreme Court — Appellate Division

Page 783

152 N.Y.S.2d 783

1 A.D.2d 1049

Austin G. RIESENBERGER, Appellant, v. Gladys SULLIVAN, also known as Gladys Riesenberger, Respondent.

(Appeal No. 1) Supreme Court, Appellate Division, Second Department.

May 28, 1956.

Reargument Denied June 25, 1956. See 153 N.Y.S.2d 601.

Anthony B. Cataloo, New York City, for appellant.

Carl E. Peterson, Rockville Centre, for respondent.

Before WENZEL, Acting P. J., and MURPHY, UGHETTA, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order granting a motion to transfer the case from the Trial Term calendar to the Special Term calendar.

In April, 1948, appellant and respondent executed a separation agreement in which appellant agreed to pay $16 weekly for the support of his wife, the respondent, so long as she lived chaste and apart from him, agreed to pay $7 a week for the support of their children during their minority or until they became self-supporting and any necessary and reasonable amounts for repairs to their home until it was sold. It was also provided that the 'house and lot now standing in the name of the wife shall be sold as soon as practical after June, 1948, and the proceeds of the sale shall be divided equally between the parties hereto.' The parties were divorced in 1949 and respondent remarried on June 5, 1953.

Three causes of action are alleged in the amended complaint. In the first cause, appellant seeks specific performance of the agreement to sell the house and to divide the proceeds, and an accounting. He alleges that he has no adequate remedy at law. In the second cause, he seeks to recover $2,250 paid to respondent after November 1, 1948, in alleged reliance upon her promise to sell the house and otherwise perform the agreement, under a mistake of fact that she would sell the house and divide the proceeds or as a result of her fraud. In the third cause, pleaded as an alternative if specific performance is not decreed, he seeks a determination, allegedly pursuant to article 15 of the Real Property Law, § 500 et seq., of the respective rights of the parties, a determination barring her claim to sole ownership of the real property, a decree ordering the sale of the real property and an accounting or that she be ordered to convey an undivided one-half interest of the property to him. Inter alia, the amended answer alleges that he did not pay for the repairs, as required, and did not pay $16 a week from August 1, 1952, to June 5, 1953. A counterclaim for a money judgment based on the $16 a week for that period is pleaded.

Order affirmed, without costs.

Assuming that a plaintiff, who pleads independent and unrelated legal and equitable causes of action in one complaint, Civil Practice Act, § 258, does not relinquish his right to a trial by jury on the legal causes (see, e. g., Di Menna v. Cooper & Evans Co., 220 N.Y. 391, 396, 115 N.E. 993, 994, and Ehrle v. Sutton Place Apts., Inc., 137 Misc. 122, 241 N.Y.S. 386, affirmed 231 App.Div. 712, 246 N.Y.S. 866; cf. De Ruvo v. Paglia, 283 App.Div. 943, 130...