| N.Y. Sup. Ct. | Mar 16, 1926
The plaintiff sues to rescind an insurance policy for fraud. The defendants counterclaim on the policy for loss under the disability clause. The plaintiff replies to the counterclaim by setting up the fraud alleged in the complaint. The defendants move for a jury trial of the issues raised by the answer and reply.
The plaintiff’s action in equity is maintainable for the reasons set forth in my memorandum in Travelers Ins. Co. v. Snydecker (127 Misc. 66" date_filed="1926-03-16" court="N.Y. Sup. Ct." case_name="Travelers Insurance v. Snydecker">127 Misc. 66). The assertion of a suit for damages on the policy is in no sense a counterclaim to an action in equity to rescind the policy. It tends neither “ to diminish or defeat the plaintiff’s recovery.” ° (Civ. Prac. Act, § 266.) At all events there is no occasion for framing issues. Under section 424 of the Civil Practice Act if the counterclaim is to be tried at all, it is to be on the issues directly raised by the reply, and that can occur only after the plaintiff has had its trial in equity.
Motion denied. Order signed.