80 A.D. 145 | N.Y. App. Div. | 1903
Lead Opinion
The allegations of the answer sufficiently show a breach of the plaintiff’s covenant against incumbrances, and we do not understand that this is questioned by the respondent, whose contention is that the appellant cannot recover more than nominal damages for the breach without showing expenditure of money on account of the alleged incumbrance. Her contention is not tenable. There was an
The further questions to be determined on this appeal are, first, was the appellant entitled as matter of right to a jury trial of the issues raised on its counterclaim; second, could such issues be noticed for trial at Trial Term without application to the court for their settlement; third, was the defendant entitled to have the issues settled and was it essential to the preservation of such right if it existed that a motion should be made for the settlement of the issues within ten days after the joinder of issue; fourth, is the order denying appellant’s motion reviewable on appeal from the judgment; fifth, could the right be preserved by renewal of the application on the trial; sixth, was the application made on the trial timely? These questions will be considered in the order stated.
First. There can be no question but that appellant might have maintained a separate action to recover these damages and that it then would have been entitled to a jury trial under the Constitution. (Art. 1, § 2.) It is, therefore, inaccurate to say that the right to a trial of the issues by a jury is not guaranteed by the Constitution. But here the counterclaim is interposed in a suit in equity and it was doubtless competent for the Legislature in permitting the interposition of a legal counterclaim in such a suit to regulate the procedure by which a jury trial might be had. In a suit in equity a counterclaim of this nature is cl early authorized by the Code. (Code Civ. Proc. §§ 500, 501, 501.) Section 968 of the Code provides that an issue of fact in “ an action in which the complaint demands judgment for a sum of money only,” or in “ an action of ejectment * * * for a nuisance, or to recover a chattel” “ must be tried by a jury, unless a jury trial is waived, or a reference is directed.” Section 914 of the Code provides that “ where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, tbe mode of trial of an issue of fact, arising thereupon, is the same, as if it arose in an action, brought by the defendant against the plaintiff, for the cause of action stated in the counterclaim and demanding the same judgment.” These statutory provisions are so plain and clear that they would not seem to require judicial construction; but they have been given full force by a construction that the
Second. In such an action it is proper and perhaps necessary that the issues arising on the counterclaim and triable by a jury should be settled where there are issues of fact arising on the complaint as well; but here it will be observed that the only issues are those arising on the counterclaim and the reply thereto. I see no reason, therefore, why these issues may not be noticed for trial at the Trial Term without their being settled. There being no other issue to try, no confusion can arise from such practice. Upon the verdict of the jury and the pleadings a motion could then be made for judgment under section 1225 of the Code. The question has generally arisen where material allegations of the complaint were put in issue, and this precise question seems to be without precedent. In the case of Mackellar v. Rogers (109 N. Y. 468) the facts were quite similar to those presented by this record. The complaint in equity was admitted and the issues arose on a legal counterclaim. Defendant noticed the issues for trial at Special Term, and it was held that he thereby waived his right to a jury trial. In the opinion it is stated, however, that in such case the defendant, in order to preserve his right to a jury trial, must move for a settlement of the issues in advance of the trial. This was clearly obiter dictum, but it has been recently quoted by the same court with apparent approval. (Bennett v. Edison Electric Illuminating Co., 164 N. Y. 131,132.) This was not necessary to the decision. However, the precise point now under consideration does not appear to have been presented or considered in either of those cases.
Third. If the appellant were not entitled to notice the issues for
Fourth. I am of opinion that the order denying the motion for the settlement of the issues is re viewable on the appeal from the judgment. Section 1316 of the Code provides that an appeal taken from a final judgment “ brings up for review an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment, and which has not already been reviewed upon a separate appeal therefrom by the court or the term of the court to which the appeal from the final judgment is taken. The right to review an interlocutory judgment or an intermediate order, as prescribed in this section, is not affected by the expiration of the time within which a separate appeal therefrom might have been taken.” This section clearly contemplates the review, on an appeal from a final judgment, of an intermediate order that might have been reviewed on a separate appeal provided it “ necessarily affects the final judgment.” It is difficult to escape the conclusion that an order denying a motion for the settlement of issues and for a jury trial where the party is entitled to the granting of the same as matter of right does affect the final judgment where that judgment is subsequently entered as the result of a trial before the court instead of before the jury. The provisions of the Code seem plain, but the decisions are quite conflicting. In Stokes
Fifth. There is much confusion in the decisions on the question as to whether in a case of this kind a motion should be made for the settlement of the issues in advance of the trial. As has been seen, there is a dictum in Mackellar v. Rogers (supra), concurred in by all of the members of that court except one, to the effect that such motion is necessary. In Smith v. Fleischman (23 App. Div. 355), a suit in equity, where there was a legal counterclaim and issues of fact arising upon both the complaint and counterclaim, it was held by this court, following the dictum in Mackellar v. Rogers (supra), that the defendant, in order to preserve his right to a jury trial, was obliged to move under section 970 of the Code for the settlement of the issues. In Arnot v. Nevins (44 App. Div. 61), where there
Sixth. The remaining question is whether the defendant’s application for a jury trial was made before the production of evidence upon the trial, which is the test by which it is to be determined whether its right to a jury trial was waived. (Code Civ. Proc. § 1009.) The record does not show the reception of any evidence prior to the defendant demanding this right. ■ It contains merely a statement of counsel for the respondent to which no reply was made by counsel for the appellant until he arose interrupting counsel for respondent and asserted the right of his client to a jury trial.
It was not necessary for the plantiff to introduce any evidence. The defendant had the affirmative and was entitled to open the case. In these circumstances the statement made by plaintiff’s counsel should not be deemed “ the production of any evidence ” within the contemplation of section 1009 of the Code; and consequently the appellant did not waive its right to a jury trial. (See Baylis v.
It follows that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event, and that the order denying defendant’s motion for an order settling the issues arising on the counterclaim and reply and directing a jury trial thereof should be reversed and motion granted, with ten dollars costs.
O’Brien, J., concurred; Patterson, J., concurred in fourth and sixth subdivisions of this opinion and in result; Van Brunt, P. J., and McLaughlin, J., dissented.
Dissenting Opinion
I am unable, for the following reasons, to concur in the opinion of Mr. Justice Laughlin. The defendant purchased from the plaintiff certain real estate in the city of New York and gave a mortgage upon the same to secure a portion of the purchase money. This action was brought to foreclose that mortgage. The answer did not deny any of the allegations of the complaint, but set up a counterclaim— which was put in issue by a reply -—for damages alleged to have been sustained by reason of a breach of a covenant against incumbrances contained in the deed of conveyance.
The action is an equitable one and, therefore, triable by the court without a jury. In the prevailing opinion it is said that the interposition of the counterclaim entitled the defendant, as a matter of right, to a trial by jury, of the issues raised by the counterclaim, and this notwithstanding the fact that no order had been obtained in advance of the trial directing that such questions be stated for trial. This contention is based upon the provisions of section 97J of the Code of Civil Procedure which provides that “ where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment.” This section did not, in my opinion, give either party the absolute right to have the action tried by a jury. The section must be con
The Mackellar case was followed by Bennett v. Edison Electric Illuminating Co. (164 N. Y. 131), and by this court, unanimously, in Arnot v. Nevins (44 App. Div. 61).
Nor do I think that the order denying the motion for the settlement of the issues can be reviewed on this appeal — the appeal from the judgment. If it can, it is solely by reason of the provisions of section 1316 of the Code of Civil Procedure. This section provides that an appeal taken from a final judgment brings up for review an interlocutory judgment or an intermediate order specified in the notice of appeal, and which necessaril/y affects thejmal judgment. The order here sought to be reviewed does not, in my opinion, affect the judgment. The trial took place in a forum recognized by law, was conducted according to statutory provisions relating to such trials, and the judgment was entered upon a decision regularly made, at the conclusion of such trial. While the order undoubtedly affected a substantial right, and if erroneous would be corrected on appeal taken directly from it, it in no way involved the merits of, or affected the judgment. (Roslyn Heights Land Co. v. Burrowes, 22 App. Div. 540.) The defendant, by omitting to appeal from the order, recognized its validity and is bound by it. He could not go to trial and, after judgment had been rendered adversely to his contention, overthrow it by successfully attacking an order theretofore made in the action, and in which he had previously acquiesced. Not only this, but the trial court was bound to recognize the validity of the order so long as it remained unreversed. It seems absurd, therefore, to hold that, notwithstanding these facts, the trial court must proceed with the trial and render a judgment,
I think the order appealed from should be affirmed.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, and order denying defendant’s motion to settle issues and direct a jury trial reversed and motion granted with ten dollars costs.