193 A.D. 759 | N.Y. App. Div. | 1920
This is a suit in equity for the recovery of ninety shares of the capital stock of the defendant corporation to which the plaintiff claims to be entitled by virtue of an agreement in writing between the parties and Albert T. Otto & Sons, Inc , under date of April 1, 1915, under which the plaintiff agreed to make certain payments, and to furnish and deliver to the defendant certain machines and machinery and to assign and transfer to the defendant for its exclusive use in the
Thus it appears that the suit is in equity and that the defendant has interposed legal counterclaims, which, since they are alleged to have arisen out of the contract on which the action is based, and, if established, will show that the plaintiff has breached the contract and, therefore, is not entitled to have all of the stock delivered to him, and perhaps none of it, until he performs the contract or pays the damages, as a substitute for performance, and consequently the counterclaims, if established, will tend to defeat or diminish plaintiff’s right to recover. (Code Civ. Proe. § 501.) But if this were not so, the point as to whether these are proper counterclaims is not presented for decision. They are causes of action in favor of the defendant for the recovery of money and the plaintiff has acquiesced in their being interposed as counterclaims herein without challenging the right of the defendants to plead them, and has joined issues of fact thereon. In these circumstances, the defendant, by its motion to settle the
The motion for the settlement of the issues was timely made under rule 31 of the General Rules of Practice. The learned counsel for the appellant insists that it is entitled as matter of right to have the issues settled pursuant to the provisions of section 970 of the Code of Civil Procedure, on the ground that it has a statutory right, by virtue of the provisions of sections 968 and 974, to have the issues of fact arising on the counterclaim, which are for the recovery of money only, and the reply thereto, tried by a jury. Counsel for the appellant contends that the decisions on the point as to whether the defendant in an equitable action who interposes a legal counterclaim is entitled as matter of right to a jury trial of the issues arising on the counterclaim, provided he timely moves for the settlement thereof, are not in harmony. There are observations in the opinions of the courts which, taken*by themselves, do not appear to be wholly consistent on this point, but when considered, as they should be, in the light of the facts and points presented for adjudication and decision, they are, I. think, substantially in accord. In Roslyn Heights Land Co. v. Burrowe (76 Hun, 62) and in Herb v. Metropolitan Hospital (80 App. Div. 145) it was held that in such case the defendant is entitled as matter of right to a jury trial of the issues arising on the counterclaim provided he duly moves therefor within the time prescribed by rule 31 of the General Rules of Practice; and although the members of this court differed on other points presented in Herb v. Metropolitan Hospital (supra) there was no difference of opinion on the point that this was a strictly legal right not resting in the discretion of the court, provided the motion for the settlement of the issues was timely made. Counsel for appellant contends that the decision of this court in Manhattan Life Insurance Co. v. Hammerstein Opera Co. (184 App. Div. 440) is in conflict with those decisions. In that he is in error. We there affirmed an order which denied such a motion on the ground that it was not made within the time prescribed by said rule; but on that appeal it was contended that there was a constitutional right to a trial by jury of the
The counterclaims apparently involve the issues of fact upon which the plaintiff’s claim to be entitled to the delivery of the stock, or at least to a delivery of part of it, depends, for it appears by the contract that he was to pay for the stock in part by the delivery of the machines and machinery which defendant contends he did not deliver in accordance with the contract. It would, therefore, seem that the issues arising on the denials in the answer of performance of the contract by the plaintiff are the same, in part at least, as the issues arising on the counterclaims. This brings the case within the rule that the court will not ordinarily exercise its discretion under section 973 of the Code of Civil Procedure to order the issues arising on counterclaims to be tried prior to the trial of the issues arising on the complaint. (Smith v. Western Pacific R. Co., 144 App. Div. 180; affd., 203 N. Y. 499.) But no motion has yet been made for a separate trial of the issues arising on the complaint or on the counterclaims before
When the issues arising on the counterclaims are so settled, if the issues arising on the complaint are reached for trial first, or should be ordered tried first under section 973, that would, in effect, constitute a severance of the issues as if defendant had brought a separate action on its counterclaim. We are of opinion, therefore, that defendant was entitled as matter of right to have its motion for the settlement of the issues granted.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Clarke, P. J., Dowling and Greenbaum, JJ., concur; Smith, J., dissents upon the ground that in his opinion the counterclaim is not a proper counterclaim because it does not tend to defeat or diminish the plaintiff’s recovery.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.