Opinion
November 17, 1926.
Appeal from Supreme Court of Onondaga County.
James E. Newell, for the appellants.
George H. Sears, for the respondent.
These actions are brought to recover damages for breach of oral agreements alleged to have been made by defendant's testatrix, one with the foster mother of plaintiff in the first entitled action, to the effect that if plaintiff, her grandniece, survived her, testatrix would leave her by will, for her sole benefit and use, such sum as would be sufficient to provide liberally for her support and education, including a musical education, from the time of testatrix's death until the grandniece should arrive at full age.
The second action is brought by the foster mother to recover under an alleged agreement of testatrix with said plaintiff to the effect that if plaintiff would adopt testatrix's said grandniece and take care of her until she grew up to be a young woman of full age, testatrix would leave the foster mother by will enough to fully compensate her for what she might do for said child down to the time of her death.
The complaints allege that in pursuance of these agreements, plaintiff in the second action duly adopted the said infant and has ever since supported, maintained and educated her, but that testatrix failed to comply with the terms of said agreements and made no provision whatever in her will, either for the infant plaintiff or her foster mother as she had undertaken and agreed to do.
These complaints have in each instance been held to state facts sufficient to constitute a cause of action. ( Ketcham v. Wilbur, 2 cases, 214 App. Div. 754; affd., 241 N.Y. 516.)
The allegations in the complaints show these actions to be brought for damages for the breach of the contracts referred to. The complaints do not set forth equitable causes of action, but merely common-law causes of action, which would entitle plaintiffs to jury trials. (Civ. Prac. Act, § 425.)
If the plaintiffs had pleaded both equitable and common-law causes of action, they would thereby waive their right to jury trials. ( Hessler v. North River Ins. Co., 211 App. Div. 595; Carroll v. Bullock, 207 N.Y. 567.)
But they having pleaded merely single common-law causes of action for damages for breach of contract, plaintiff in each case would be entitled to a jury trial, even though in the demands for judgment they asked for both legal and equitable relief.
The prayer for relief in each case forms no part of the cause of action. The character of the actions must be determined by the facts alleged in the complaints. ( Hahl v. Sugo, 169 N.Y. 109, 114.)
The orders should be reversed, with ten dollars costs and disbursements in each case, and the causes restored to the Trial Term calendar in Onondaga county.
HUBBS, P.J., SEARS, CROUCH and TAYLOR, JJ., concur.
In each case: Order reversed, with ten dollars costs and disbursements, and case restored to Trial Term calendar.