63 N.Y.S. 947 | N.Y. App. Div. | 1900
By the amended complaint the plaintiff alleges that he loaned to the defendant various sums of money aggregating $46,000 ; that the defendant repaid to the plaintiff the sum of $5,000, leaving due- and unpaid the sum .of $41,000 ; that subsequently the plaintiff endeavored to collect from the defendant the balance due as aforesaid, and that the defendant, for the purpose of deceiving the plaintiff, made certain false and fraudulent representations by which the plaintiff was induced to execute a general release to the defendant in full settlement of the said balance of $41,000; that said representations were willfully and intentionally false, and were made with intent to, and did, deceive the plaintiff. Judgment is, therefore, demanded that the said release be delivered up and canceled and declared null and void, and that the plaintiff recover from the defendant the balance due. In answer to this amended complaint the defendant denied each and every allegation therein contained, except that he admits and alleges that, before the commencement of the action, the plaintiff, for a valuable consideration, delivered to the defendant a general release. Both parties noticed the action for trial at Special Term. The case was called for trial, and on application of the defendant was adjourned. Subsequently the defendant made this application to have issues framed for trial by a jury.
Unless the defendant was entitled to a trial by jufy as a right, this motion was properly denied, as by rule 31 of the General Rules of Practice such a motion, when a party is not entitled to a trial by jury as a matter of right, must be made within ten days after issue joined. The defendant, however, insists that as this action is to recover for a sum of money only, he is entitled, by section 968 of the Code of Civil Procedure, to a trial by jury. That section provides that, in an action in which the complaint demands judgment, for a sum of money only, an issue of fact must be tried by a jury unless a jury trial is waived or a reference is directed, but this section only applies to an action where the sole relief sought is the recovery of a sum of money, and this action is not one therein specified. The cause of action is an equitable one. There could be no enforcement of the legal right except upon condition that equity should remove the barrier raised by the release, and to remove that-
It follows that the order appealed from was right and it should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.