Duane Jones Co. v. Burke, 280 A.D. 889

Duane Jones Co. v. Burke

280 A.D. 889 | N.Y. App. Div. | 1952

Order unanimously affirmed, with $20 costs and disbursements to respondents. Plaintiff’s complaint sets forth four causes of action, three of which allege distinct torts as a basis for money damages and a fourth cause of action, under sections 60 and 61 of the General Corporation Law, for an accounting in equity. The alleged tortious acts are repeated in the equitable cause of action as breaches of fiduciary duty. The complaint may not be treated as setting forth one comprehensive action in equity, so long as it *890remains in its present form. Defendants are entitled to a jury trial of the causes of action at law under the present pleading. A different situation would be presented if the separate claims of tort were waived and plaintiff chose to proceed solely to recover a judgment for an accounting for injuries done to it. The only right to a jury trial in such case would be where issues were framed for that purpose. (See, however, General Corporation Law, § 61, and former § 91-a.) We held nothing to the contrary in our prior decision (see 279 App. Div. 1005). The order affirmed in that ease was held not to prejudice any party’s right to a jury trial. Present — Peek, P. J., Dore, Cohn and Callahan, JJ.