Vinlis Construction Co. v. John J. Roreck

In our opinion, the second and third causes of action in the supplemental complaint seek a judgment for a sum of money only, thus entitling the defendant to a jury trial despite the first cause of action in equity for an accounting (CPLR 4101; Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 395; Wheelock v. Lee, 74 N. Y. 495, 500). Since the note of issue with respect to the original complaint, which pleaded only an action for an accounting -- an action cognizable only in equity -- was served more than a year prior to service of the supplemental complaint adding the second and third causes of action, and since a new note of issue was not thereafter served by the plaintiff, the defendant could not avail himself of the statutory right to serve a jury demand within 10 days after the service upon him of a note of issue without a jury demand. Under all the circumstances, we therefore find that the defendant did not waive his right to a trial by jury with respect to the second and third causes of action contained in the supplemental complaint; and that it was an improvident exercise of discretion to now deny him a jury trial on those causes of action. Of course, when legal and equitable causes of action are thus united in one complaint, the court may sever the legal causes of action and direct that they be tried separately before a jury, leaving the equitable causes of action to be tried separately by the court (cf. Micro Precision Corp. v. Brochi, 4 A.D.2d 697). But here a severance would be inadvisable and should not be directed. The legal and equitable actions are so intertwined and related that one trial of all the causes of action is both desirable and necessary. The Justice presiding at the jury trial of the legal causes of action (the second and third) should at the same term try and determine without the jury the equitable cause of action (the first, for an accounting). Of course, in the proceedings before the Trial Justice it will be incumbent upon him to regulate and direct the sequence of the trial of the issues as he deems proper under all the circumstances then prevailing (CPLR 603). We are of the further opinion that under the circumstances here the defendant has not waived his right and is entitled to the pretrial examination of the plaintiffs concerning the allegations in the additional second and third causes of action asserted in the supplemental complaint. Such examination, however, should proceed promptly and should be completed without undue delay by the defendant and without obstruction by the plaintiffs. (For decision on prior appeal in this action, see 19 A.D.2d 753.)