Mishler v. Mishler , 41 Misc. 2d 471 ( 1963 )

Morris E. Spector, J.

Defendant Jacob Mishler moves to vacate the jury demand contained in the note of issue served and filed by the plaintiff on October 16, 1963. Defendant contends that the plaintiff has waived a trial by jury by joining in the complaint, served in September, 1962, three causes of action seeking money relief and three causes of action seeking equitable relief.

The plaintiff waives his right to a trial by jury by either joining legal and equitable causes of action arising out of the same transaction or seeks legal and equitable relief for the same cause of action. However, in the situation where plaintiff joins separate, independent causes of action, one involving a claim to legal relief, the other a claim to equitable relief, some eases have held that by asserting an equitable claim, the plaintiff waives his right to a trial by jury on his legal claim; other cases have held that he has not waived his right to a jury trial of the legal claim (see cases cited 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., ¶ 4101.36). To avoid further confusion in the law (see Second Preliminary Report of Advisory Comm, on Practice and Procedure ; N. Y. Legis. Doc., 1958, No. 13), this conflict has been resolved by subdivision (c) of section 4102 of the Civil Practice Law and Rules by providing that a party shall not be deemed to have Waived the right to a trial by jury of the issues of fact arising upon a claim, by joining it with another claim with respect to which there is no right to a trial by jury and which is based upon a separate transaction.

The defendant has not disputed plaintiff’s assertion that the causes of action alleged in the complaint are independent, unrelated and arise from separate transactions, and that plaintiff’s legal causes of action are not based on any of the transactions which give rise to her equitable claims. The other objections raised by the defendant are without merit, as the provisions of the Civil Practice Law and Rules are applicable to this action. Section 10003 of the Civil Practice Law and Rules, states that the Civil Practice Law and Rules shall apply to all actions hereafter commenced and shall apply to all further proceedings in pending actions. The motion is denied.