80 N.Y.S. 552 | 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. His contention is not tenable. There was an immediate breach of the covenant, and the appellant was entitled to recover the difference between the value of the premises with and without the encroachment. Huych v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432.
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
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. It is therefore inaccurate to say that the right of a trial of the issues by a jury is not guarantied 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 clearly authorized by the Code. Code Civ. Proc. §§ 5°°, 501, 507. 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 974 of the Code 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.” 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 counterclaim therein referred to is one upon which a separate cause of action for an affirmative judgment could be maintained against the plaintiff. Cook v. Jenkins, 79 N. Y. 575; City Real Estate Co. v. Foster, 44 App. Div. 114, 60 N. Y. Supp. 577. It seems clear, therefore, that the appellant was entitled to a jury trial of these issues as matter of right, even though they arise on a legal counterclaim in a -suit in equity; and this proposition is sustained by the authorities. Deeves v. Metropolitan, etc., Co., 6 Misc. Rep. 91, 26 N. Y. Supp. 23, affirmed on opinion below 141 N. Y. 587, 36 N. E. 739; McAleer v. Sinnott, 30 App. Div. 318, 51 N. Y. Supp. 956; Hoffman House v. Hoffman House Café, 36 App. Div. 176, 55 N. Y. Supp. 763; Wheelock v. Lee, 74 N. Y. 495; VanDeventer v. VanDeventer, 32 App. Div. 578, 53 N. Y. Supp. 236; Baylis v. Bullock Electric Mfg. Co., 59 App. Div. 576, 69 N. Y. Supp. 693.
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
Third. If the appellant were not entitled to notice the issues for trial at the Trial Term without having them settled, he was entitled, as matter of right, under section 970 of the Code, to have his motion for their settlement granted. Code Civ. Proc. § 970; Deeves v. Metropolitan, etc., Co., supra; McAleer v. Sinnott, supra; Hoffman House v. Hoffman House Café, supra. Although in this case the motion was made within the time limited by rule 31 of the general rules of practice, yet this is such a substantial right that it has been held that the rule does not limit the operation of this section of the Code in cases where a trial by jury is a matter of right, and that the motion may be made at any time before trial. Conderman v. Conderman, 44 Hun, 181; Ulbricht v. Ulbricht, 89 Hun, 479, 35 N. Y. Supp. 324; and VanDeventer v. VanDeventér, supra. It has been since held, however, by this court, without considering these authorities, that where a motion to settle the issues is necessary under section 970 of the Code, it must be made within the time prescribed -by rule 31. Arnot v. Nevins, 44 App. Div. 61, 60 N. Y. Supp. 401.
Fourth. I am of opinion that the order denying the motion for the settlement of the issues is reviewable 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 on a separate appeal therefrom, by the court or the term of court to which the appeal ’from the final judgment is taken. The right to review an interlocutory judgment dr 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, or an appeal from a final judgment, of an intermediate order that might have been reviewed on a separate appeal, provided it “necessarily
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, 48 N. Y. Supp. 234, 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, 60 N. Y. Supp. 401, where there were issues of fact arising on a complaint in equity and issues of fact arising upon a legal counterclaim, this court again followed the dictum in the Mackellar Case, supra, and held that the defendant’s right to a jury trial was lost because he did not apply under section 970 of the Code, and within the time prescribed by rule 31 of the general rules of practice, for an order settling the issues. This case is in conflict with VanDeventer v. VanDeventer, supra, which apparently was not cited, where one cause of action for equitable relief and another for legal relief were alleged in the complaint, upon each of which issues of fact arose, and it was held that the defendant’s right to have the legal issues tried by a jury might be asserted at any time before the production of evidence upon the trial. To the same effect is Wheelock v. Lee, 74 N. Y. 495. In the VanDeventer and Wheelock Cases the party sued was demanding his constitutional right to a jury trial of the issues of fact arising on that count of the pleading which alleged a cause of action at law against him; while in the Arnot Case the defendant, who unnecessarily interposed a legal counterclaim in an equity suit, was demanding a right to a jury trial on his own counterclaim — but that, as has been seen, is expressly authorized by the
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 his 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 plaintiff to introduce any evidence. The defendant had the
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 $10 costs.
O’BRIEN, J., concurs. PATTERSON, J., concurs in fourth and sixth subdivisions of this opinion, and in result.
1. See Covenants, vol. 14, Cent. Dig. §§ 111, 239.
Dissenting Opinion
(dissenting). I am unable, for the following reasons, to concur in the opinion of Mr. Justice LAUGHLIN: 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 974 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 construed in connection with section 970, and when thus construed it will be found that the latter section is applicable. It provides that “where a party is entitled by the Constitution or by express provision of law to a trial by a jury [the parties here were entitled by express provision of law to a trial by jury of the issues arising upon the counterclaim] of one or more issues of fact in an action not specified in section 968 of this act, he may apply, upon notice, to the court for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.” To entitle either party, therefore, to a trial by jury of the questions arising upon the counterclaim, he was bound to apply to the court for
“We have only to inquire whether the defendant was, under the circumstances, entitled to a jury trial as a matter of right. The appellant’s contention rests upon section 974 of the Code of Civil Procedure, which provides: * ■■■ * The conditions upon which the right depends exist in favor of the defendant, but that right is not absolute or unqualified. It is relative and limited, and, in the words of the heading of section 974, ‘within’ certain ‘foregoing sections’ only is ‘a counterclaim to be deemed an action.’ * * * If tolerated, it would enable a person sued to postpone and delay the plaintiff in the prosecution of a jury cause until at a convenient time, and before another tribunal, he had presented a cause of action subsequently brought into court, and the determination of which had no necessary connection with the plaintiff’s demand in suit, * * * It is to be conceded that the mode of trial of the issue tendered by his counterclaim might be the same as if it had arisen in an action. But a counterclaim in an equity suit is not a case where a right to a jury trial existed at common law. * * * It is not secured by the Constitution. It is not to be had as of course, for the action is not within section 970 of the Code, supra, the complaint de*562 manding judgment other than for a su,m of money. It is conferred by statute (section 974), and so is within section 970, supra, which requires an application upon notice to the court for an" order directing the questions arising upon the issues to be stated for trial.”
The Mackellar Case was followed by Bennett v. Edison Electric Illuminating Co., 164 N. Y. 131, 58 N. E. 7, and by this court unanimously in Arnot v. Nevins, 44 App. Div. 61, 60 N. Y. Supp. 401.
This being so, I can see no good purpose in considering the other .decisions referred to in' the prevailing opinion, inasmuch as the rule seems to have been definitely settled, not only’by this court, but by the court of last resort; and, if it had not, the orderly dispatch of business at Trial and Special Terms requires that this practice should prevail, instead of that contended for in the prevailing opinion. Where an issue is raised in an equitable action, which the party may have tried by a jury if he so desires, all that is necessary to do is to apply to the court in advance of the trial that issues be framed for trial and sent to a jury, and, if he does not do this, he ought to be held to have waived such right. He certainly ought not to be permitted to wait until the case is called for trial at .Special Term, and then delay.the trial by asking that certain matters be sent to a jury.
Nor do I think 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 necessarily affects the final 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 Pleights Hand Co. v. Burrowes, 22 App. Div. 540, 48 N. Y. Supp. 15. The defendant, by omitting to appeal from the order, -. recognized its validity and is boutid 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, the validity of which can be attacked by reason of a previous order in the case, which he was bound to recognize.
I think the order appealed from should be affirmed.
VAN BRUNT, P. J., concurs.