Fitzgerald v. Sullivan

12 Conn. Supp. 206 | Conn. Super. Ct. | 1943

The first count of the complaint in this action states a cause of action for breach of contract, the second a cause of action for fraud and the third a cause of action for an accounting. The prayers for relief are first, equitable relief by way of accounting and judgment for the amount found due upon the account, and second, legal relief in the form of damages.

Under our law the form of relief demanded makes little difference on the question of whether a case is entitled to a jury trial. The real question is as to whether the cause of action stated is one which is essentially legal or one which is essentially equitable. National Bank of Commerce of NewLondon vs. Howland, 128 Conn. 307; LaFrance vs. LaFrance, 127 id. 149, 152; Berry vs. Hartford National Bank TrustCo., 125 id. 615, 617. And where a single complaint alleges separate and distinct causes of action, some of which are causes of action at law and some causes of action in equity, then either party has the right to have a jury trial of the issues involved in the causes of action at law. Purdy vs. Watts,91 Conn. 214, 217.

In the present case the causes of action set up in the first two counts are essentially actions at law. On the other hand the cause of action stated in the third count is one essentially for an accounting which is equitable. It is obvious that the plaintiff seeks the legal relief claimed as his remedy for the causes of action stated in the first and second counts and the equitable relief claimed as his remedy for the cause of action stated in the third count. Accordingly, he is entitled to a jury trial on each of the first and second counts but not on the third count.

The motion is denied as to the first two counts of the complaint but is granted as to the third count.