Page, J.:
The sole question presented on this appeal relates to the order denying defendant’s motion for a jury trial of the issues raised by the counterclaims and the reply, in an equity action for foreclosure of a mortgage, a lien upon real estate. The learned justice at Special Term denied the motion for the reason that the motion was not made within twenty days of the joinder of issue, as required by rule 31 of the General Rules of Practice. (101 Misc. 608" court="N.Y. Sup. Ct." date_filed="1917-12-15" href="https://app.midpage.ai/document/manhattan-life-insurance-v-hammerstein-opera-co-5416346?utm_source=webapp" opinion_id="5416346">101 Misc. Rep. 608.) The appellant claims that this rule has been declared unconstitutional, and that, his counterclaim stating causes of action at law, he is entitled to a jury trial of the issues raised by the reply to the allegations thereof. It is true that the Court of Appeals held that in an action for a divorce, in which the parties had a right to a trial by jury on the issue of adultery prior to 1846, that right could only be waived as prescribed by section 1009 of the Code of Civil Procedure, and that the additional ground for waiver stated by rule 31 was, as to such an action, unconstitutional and *442void. (Moot v. Moot, 214 N.Y. 204" court="NY" date_filed="1915-02-25" href="https://app.midpage.ai/document/moot-v--moot-3588930?utm_source=webapp" opinion_id="3588930">214 N. Y. 204.) The instant action is in equity for the foreclosure of a mortgage lien upon real estate. In such an action there never was a constitutional right to a trial by jury of the issues. A counterclaim in an equitable action was unknown at the common law, and, therefore, the issues raised thereby are not within the constitutional provision. (Mackellar v. Rogers, 109 N.Y. 468" court="NY" date_filed="1888-06-05" href="https://app.midpage.ai/document/mackellar-v--rogers-3605688?utm_source=webapp" opinion_id="3605688">109 N. Y. 468, 472; Teeter v. Daniel, 164 A.D. 884" court="N.Y. App. Div." date_filed="1914-07-15" href="https://app.midpage.ai/document/teeter-v-daniel-5234449?utm_source=webapp" opinion_id="5234449">164 App. Div. 884.) The Code procedure permits of the interposition of a legal counterclaim in an equitable action. Thus the defendant has a choice of remedies. He may bring an action at law on his counterclaim, in which case he would have an absolute right to a trial by jury of the issues of fact; or, he may set up his cause of action by way of a counterclaim in the equity action, in which his right to a trial by jury will rest in the discretion of the court. This defendant elected to pursue the latter course; and having made his election, he cannot now claim that he has a right to a jury trial. It was never contemplated that by interposing a counterclaim the defendant could divest the court of equity of jurisdiction of any part of the suit properly commenced therein, and delay the plaintiff in the prosecution of his equitable remedy until plaintiff could have his action at law tried. A court of equity, having assumed jurisdiction, will grant full relief, whether the same be legal or equitable.
The judgment and order appealed from will, therefore, be affirmed, with costs.
Dowling, Laughlin and Merrell, JJ., concurred; Smith, J., concurred in result.
Judgment affirmed, with costs.