69 N.Y.S. 693 | N.Y. App. Div. | 1901
In this case we think the court erred, in view of the position taken by the defendant prior to the production of any evidence upon the trial, in disposing of the case without the intervention of
At the commencement of the trial of the action, and also in its answer, the defendant called the attention of the court to the fact that upon the allegations of the complaint no equitable relief could possibly be obtained ; and it first moved to dismiss the complaint because it did not state facts sufficient to constitute a cause of action. When this was denied, it moved to dismiss on the ground that the court had not jurisdiction to try the issues or questions raised by the complaint and answer, if any, and that it was purely an action at law to recover royalties, and that there was nothing that called for equitable relief in the action. It also, in that connection, demanded a jury trial. These motions were denied, and an exception was taken to the denial of the motion to dismiss, and also to the denial of the demand for a jury trial.
It is true that the judgment gave relief in the nature of a discovery of books and papers, etc., but there is no such branch of equitable jurisprudence under the Code. A bill cannot be filed for the purpose of the discovery of evidence; and, therefore, the judgment, so far as it granted relief in this respect, was entirely erroneous. The action was simply one to recover royalties, the amount of which was alleged in the complaint, and which were recovered by the judgment entered after trial by the court. The plaintiff, not having established any right to equitable relief, • certainly could not recover a simple money judgment in the face of the objection of the defendant that, the only relief which could be obtained in the action being a money judgment, it was entitled t'o a jury trial. This right to a jury trial may be waived in, a certain method prescribed by section 1009 of the Code, which provides that a party may waive
In the case at bar the trial appears to have been moved by the plaintiff, at" least there is no evidence that the defendant moved the trial, and before the production of any evidence the defendant demanded the right to a jury trial, calling the atténtion of the court tó the fact that no equitable relief whatever could be obtained in the action. It is true that it made motions to dismiss the complaint, but its demand for a jury trial was made before the production of any evidence, and was in time, according to the provisions of section 1009 of the Code.
It is suggested that it has been intimated that a trial by jury may be waived in other ways than those mentioned in the Code; and it is urged that because the defendant had noticed the cause for trial at Special Term it thereby waived its right to a jury trial. It should he observed that the defendant had no right to put this case upon the Trial Term calendar, because upon the face of the complaint it was not entitled to a jury trial, as the complaint demanded other relief than a money judgment. The defendant was compelled to go into the Special Term and there claim the right to a jury trial upon the ground that although there was a demand contained in the complaint for equitable relief, none could - be granted; and it is a familiar principle that a plaintiff cannot deprive a defendant of the right to a jury trial by demanding equitable relief which cannot be granted in the action.
In support of the proposition that this case was properly triable by the court without a jury, our attention is called to the case of Cogswell v. N. Y., N. H. & H. R. R. Co. (105 N. Y. 319). But all that was there decided was that in that case the plaintiff could not claim a jury trial. The court say: “We think it is a reasonable rule and one in consonance with the authorities, that where a plaintiff brings an action for both legal and equitable relief in. respect to the same cause of action, the case presented is not one of right
Our attention is also called to the case of Marshall v. De Cordova (26 App. Div. 615). The writer of this opinion, who also wrote the opinion in the case cited, certainly used language which is not borne out by the provisions of the Code, and probably it arose from the fact that the decision of the case did not turn upon the particular question now under consideration. It is there stated that the rule was that before the commencement of the trial if a party desires to avail himself of the right to a trial by jury, he must make
The judgment appealed from must bé reversed, and a new trial ordered, with costs to the appellant to abide the event.
• O’Brien and McLaughlin, jJ„ -concurred; Ingraham, ,J., concurred in result.
Judgment reversed, new trial ordered, costs to appellant to abide event;