13 N.Y.S. 886 | The Superior Court of the City of New York and Buffalo | 1891
It is claimed by the learned counsel for the appellants that the plaintiffs did not show title to the land appurtenant easements to which have.been taken as the complaint charges. The supposed defects in the title, as claimed, arise from the non-compliance with certain of the provisions of the will of one Hoyt, from whom the title comes. If the land is a part of a share described in the will, which was to be set off to the trustee for the mother of the present plaintiffs for her life, then under the will the plaintiffs took the remainder in fee at her death. This setting off was accomplished by the partition suit, to which all persons who could question plaintiffs’ title to the land were parties. These parties having received, in lieu of undivided interests, the whole of the fee of the other parcel of land, cannot claim that they have an undivided interest in the land conveyed by the referee to Hoyt, as trustee for plaintiffs’ mother. The mother having died, the legal estate of the trustee then ceased. The defendants have not a right to a jury trial in-this case, as the action is for equitable relief. “When a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right, triable by jury under the constitution.” Cogswell v. Railroad Co., 105 N. Y. 319, 11 N. E. Rep. 518. Judgment affirmed, with costs. All concur.
