Schneier's Estate, Matter of

• Decision Date: 08 April 1980
• Citation: 426 N.Y.S.2d 624,74 A.D.2d 22
• Parties: In the Matter of the ESTATE OF Saul SCHNEIER, Deceased. Nathan FRIEDMAN, Appellant, v. MERCHANTS NATIONAL BANK AND TRUST COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 624

426 N.Y.S.2d 624

74 A.D.2d 22

In the Matter of the ESTATE OF Saul SCHNEIER, Deceased.

Nathan FRIEDMAN, Appellant, v. MERCHANTS NATIONAL BANK AND TRUST COMPANY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 8, 1980.

Marc G. Terziev, Syracuse (Oot, Setright & Ciabotti, John Setright, Syracuse, of counsel), for appellant

Hiscock, Lee, Rogers, Henley & Barclay and Jacob G. Schneier, Rochester (Richard Kopek, Syracuse, of counsel), for respondent.

HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

OPINION

WITMER, Justice.

The principal question presented in these appeals is whether petitioner, who instituted a proceeding in Surrogate's Court in the nature of a replevin action to recover specific certificates of corporate stock and other assets, formerly possessed by the testator and now in the hands of respondent as executor, is entitled to a jury trial of the issues raised by respondent's answer. The Surrogate granted respondent's motion to vacate petitioner's demand for jury trial; and we reverse.

Petitioner instituted this proceeding pursuant to section 2105 of the Surrogate's Court Procedure Act (SCPA), subdivision 1 of which provides,

"A person having a claim to specific money or personal property or the proceeds thereof alleged to be in the possession of or under the control of a fiduciary may present to the court from which letters were issued to the fiduciary a petition showing the facts and praying that the fiduciary be required to show cause why he should not be required to deliver the specific money or personal property or the proceeds thereof."

Subdivision 3 of that section provides,

"Upon return of process the court must hear the proofs of the parties, determine the issues, and if claim shall have been made to the money, property or the proceeds thereof by a person or persons other than the fiduciary, the court shall determine the respective interests of the parties in the property or the proceeds or value thereof and make a decree accordingly."

Under claim of ownership petitioner seeks to recover specific property held by respondent, and his action is recognized as one in the nature of replevin, an ancient common law action traditionally tried before a court and jury (see Matter of Garfield, 14 N.Y.2d 251, 258, 262, 251 N.Y.S.2d 7, 11, 14, 200 N.E.2d 196, 199, 201; Bullis et al. v. Montgomery et al., 50 N.Y. 352; Matter of Comfort, 234 App.Div. 19, 253 N.Y.S. 796; 7 Carmody-Wait 2d N.Y.Prac., §§ 49:13, 49:20; and 12 Carmody-Wait 2d, N.Y.Prac., §§ 82:6, 82:149; 1 B Warren's Heaton on Surrogates' Courts, § 108). Subdivision 1 of section 502 of Surrogate's Court Procedure Act provides in part, "Right to jury trial. 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 * * *." Section 2 of Article 1 of the New York Constitution, adopted in 1938, guarantees "(t)rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision * * *." In Matter of Luria, 63 Misc.2d 675, 676, 313 N.Y.S.2d 12, 15, former Surrogate Nathan R. Sobel wrote, "The net effect of this * * * 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."

Discovery proceedings by an estate fiduciary were authorized in 1870 (L.1870, ch. 359; now SCPA 2103 and 2104) and in such proceedings, if the issue of title was raised, the fiduciary was entitled to jury trial (Matter of Wilson, 252 N.Y. 155, 159, 169 N.E. 122, 123. Statutory provision for a claimant to institute an action or proceeding in the nature of replevin in Surrogate's Court was not enacted until 1934 (L.1934, ch. 539; now SCPA 2105). Such provision was held to derive from the equitable powers of the court with respect to fiduciaries (Matter of Leary, 175 Misc. 254, 255, 23 N.Y.S.2d 13, 14, affd. sub nom.; Matter of Werner v. Reid, 260 App.Div. 1000, affd. 285 N.Y. 693, 34 N.E.2d 383), and was sometimes referred to as a "reverse" discovery proceeding and was deemed summary in nature. Because it was enacted after the Constitution of 1894, it was held not to give a constitutional right of trial by jury (Matter of Boyle, 242 N.Y. 342, 151 N.E. 821; Matter of Leary, supra; 7 Carmody-Wait 2d, N.Y.Prac., § 49:13).

A party seeking to assert a claim in the nature of replevin (Matter of Nutrizio, 211 App.Div. 8, 13, 206 N.Y.S. 706, 709) against an estate fiduciary, however, could bring his action in a court of law, wherein he was entitled to trial by jury (Matter of Garfield, 14 N.Y.2d 251, 258, 262, 251 N.Y.S.2d 7, 11, 14, 200 N.E.2d 196, 199, 201; 7 Carmody-Wait 2d, N.Y.Prac., § 49:20; 12 Carmody-Wait 2d, N.Y.Prac., § 82:149). Thus existed the anomalous situation in which a jury trial could be had in replevin actions or proceedings brought in Supreme Court by or against an estate fiduciary whereas in Surrogate's Court it could be had by an estate fiduciary against a third party but not by a claimant against an estate fiduciary.

It had long been the rule that when a plaintiff, entitled to a jury trial in a legal cause of action, joined with it an equitable cause of action he thereby waived his right to a jury trial in the legal cause of action (Di Menna v. Cooper & Evans Co., 220 N.Y. 391, 395, 115 N.E. 993, 994). This principle was used to support the holding of a waiver of the right to jury trial by a claimant who sued an estate fiduciary in replevin in a court of equity, that is, the Surrogate's Court. The principle, however, was found not to work both ways; and in Matter of Garfield, 14 N.Y.2d 251, 251 N.Y.S.2d 7, 200 N.E.2d 196, supra, the court, speaking through Bergan, J., held that a claimant against an estate fiduciary could not deprive the latter of a jury trial by suing his claim in Surrogate's Court on a cause of action in which a party was entitled at common law to a jury trial. In such holding the court merely recognized that because the fiduciary was readily subject to the jurisdiction of the Surrogate's Court did not mean that he could be deprived of his right to jury trial with respect to a cause of action as to which the constitution guaranteed such right. This led the court to express another principle which destroyed the basis for the holdings in earlier cases that a claimant against an estate fiduciary was not entitled to a jury trial in Surrogate's Court in a cause of action constitutionally protected by the right to jury trial. The court stated that "the Legislature (could not) deprive a party who would have had a right to jury trial at common law of such right by authorizing a court of equity to take jurisdiction (People ex rel. Lemon v. Elmore, 256 N.Y. 489, 493, 177 N.E. 14; Hudson v. Caryl, 44 N.Y. 553)." (Matter of Garfield, supra, 14 N.Y.2d p. 258, 251 N.Y.S.2d p. 11, 200 N.E.2d p. 199).

Such ruling in Garfield, supra, turned the vital inquiry from the nature of the court (that is, was it principally concerned with the trial of equitable issues?) to the nature of the cause of action (that is, was it one in which the constitution guaranteed the right to jury trial?). In his brief concurring opinion in Garfield Judge Scileppi pinpointed the basis of the decision when he wrote "If the claim were sued on in the Supreme Court, the parties would be entitled to a jury trial; why not so in this case?". The practical wisdom of the Garfield ruling is even more evident today in light of the determination of Chief Judge Cooke and Chief Administrative Judge Evans to make all judges of courts of record subject to transfer to any court where case congestion exists. The question is not, what "hat" the particular judge is wearing, that is, is he sitting in a court of law or equity, but what is the nature of the claim and cause of action presented, that is, does the constitution guarantee a trial by jury as to it? In Matter of Luria, 63 Misc.2d 675, 679-682, 313 N.Y.S.2d 12, 16-19, supra, Surrogate Sobel with penetrating analysis pointed out the significance of the Garfield decision. Prior to Garfield, in several decisions the courts recognized that in an action sounding in replevin either party was entitled to a jury trial, even in Surrogate's Court (Matter of Comfort, 234 App.Div. 19, 25, 253 N.Y.S. 796, 803, supra; Matter of Pritchard, 227 App.Div. 105, 106, 237 N.Y.S. 156, 157; Matter of Nutrizio, 211 App.Div. 8, 13, 206 N.Y.S. 706, 709, supra). In Matter of Comfort, the court wrote, "it matters not whether the claim of title is presented during or after an inquiry by the Surrogate (in a prior discovery proceeding), or whether it is raised in the proceeding by a verified answer. In either case, either party is entitled to a jury trial." Nevertheless, prior to Garfield the general holdings were that a claimant against an estate fiduciary was not entitled to a jury trial in Surrogate's Court but if the fiduciary demanded a jury, he was entitled to one (see Matter of Abend, 176 Misc. 717, 718, 29 N.Y.S.2d 13, 14).

As a matter of statutory construction it should be ruled that a jury trial on an issue of title in a proceeding under section 2105 of the Surrogate's Court Procedure Act may not be denied. As above noted, when the issue is reached in a proceeding instituted by the estate fiduciary for discovery under sections 2103 and 2104, either party is entitled to jury trial. By section 1810 of SCPA the Legislature provided for actions by a claimant against an estate fiduciary to be brought in courts...