Summary
In Mittenthal v. Rabinowitz (60 App. Div. 138), cited by appellant, this court held that a case regularly on the Special Term calendar and marked "reserved generally" could be moved upon the day calendar of the Special Term for trial even though it was clearly an action at law.
Summary of this case from Everett v. De FontaineOpinion
April Term, 1901.
A.H. Parkhurst, for the appellant.
David J. Wagner, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, INGRAHAM, McLAUGHLIN and HATCH, JJ.
We think the motion should have been granted. The cause had been regularly placed upon the Special Term calendar for trial, and the fact that thereafter it was marked "reserved generally" did not prevent the plaintiff from having it restored to the day calendar for trial, and the court could not, upon a motion for that purpose, refuse to restore it on the ground that it ought not originally to have been placed upon the Special Term calendar.
Although the judgment demanded being for an accounting, yet as the facts alleged in the complaint do not establish that the plaintiff is entitled to equitable relief, the defendant is entitled as a matter of right to a jury trial. ( Glenn v. Lancaster, 109 N.Y. 641.) If the allegations of the complaint are true, then the plaintiff is not entitled to equitable relief, but having placed his cause upon the Special Term calendar, and having demanded equitable relief, he can, if he insists upon it, bring his cause to trial in that branch of the court. He has that right. But, unless he succeeds in establishing facts which entitle him to equitable relief, his complaint must be dismissed, and it is difficult to perceive how he can possibly succeed, upon the allegations of his complaint, in obtaining relief of that character. However, that question is not now before us. All that we now decide is that he is entitled to have his cause restored to that calendar if he insists upon it.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted.
Order reversed, with ten dollars costs and disbursements, and motion granted.