Vinlis Const. Co. v. Roreck
| Citation | 23 A.D.2d 895,260 N.Y.S.2d 245 |
| Parties | VINLIS CONSTRUCTION CO., Inc. et al., Respondents, v. John J. RORECK, Appellant. |
| Decision Date | 24 May 1965 |
| Court | New York Supreme Court — Appellate Division |
Robert J. Glasser, Bethpage, for appellant.
Benjamin Cooper, New York City, for respondents.
Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action for an accounting, the defendant appeals: (1) from so much of an order of the Supreme Court, Queens County, entered October 2, 1964, as denied his motion to strike the action from the equity calendar and for leave to serve a jury demand; and (2) from an order of said court, entered November 24, 1964, which granted plaintiffs' motion to vacate the defendant's notice of the pretrial examination of the plaintiffs.
Order of October 2, 1964, insofar as appealed from, reversed, with $10 costs and disbursements; and defendant's motion to strike the action from the equity calendar, and to serve a demand for a jury trial granted, with $10 costs. Such demand shall be served and filed within thirty days after entry of the order hereon. Upon the filing of the demand the action shall be placed upon the court's jury calendar for a trial by jury as to the second and third causes of action which were added by the supplemental complaint. The first cause of action for an accounting shall proceed to trial concurrently before the same trial justice but without a jury. The sequence in which the jury issues and the nonjury issues shall be tried will be determined by the trial justice (CPLR 603).
Order of November 24, 1964 reversed, with $10 costs and disbursements and plaintiffs' motion to vacate the defendant's notice, dated October 14, 1964, for the pretrial examination of the plaintiffs, denied insofar as such notice relates to the second and third causes of action and granted insofar as the notice relates to the first cause of action. The examination upon the second and third causes of action shall proceed on ten days' written notice or upon such date as the parties shall mutually fix by written stipulation. The examination shall be completed within 90 days after its commencement.
In our opinion, the second and third causes of action in the supplemental complaint seek a judgment for a sum of money only, thus entitling the defendant to a jury trial despite the first cause of action in equity for an accounting (CPLR 4101; Di Menna v. Cooper & Evans Co., 220 N.Y. 391, 395, 115 N.E. 993, 994; Wheelock v. Lee, 74 N.Y. 495, 500).
Since the note of issue with respect to the original complaint, which pleaded only an action for an accounting--an action cognizable only in equity--was...
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...that they are not entitled to a jury trial on those of plaintiffs' claims which are equitable in nature (see, Vinlis Constr. Co. v. Roreck, 23 A.D.2d 895, 260 N.Y.S.2d 245), including the cause of action seeking to remove defendants as partners based on their alleged breach of fiduciary dut......
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