
    William Beary, App’lt, v. John G. Hoster, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 9, 1889.)
    
    1. Jury—Triar by—When cannot be denied.
    Where both causes of action stated in a complaint are purely legal, and the only defense to the first is a general denial, the plaintiff has a constitutional right to a jury trial.
    2. Equity—Framing of issues.
    In an equity cause the framing of issues is not a right, hut rests in the discretion of the court.
    Appeal from an order at the circuit striking the cause off the circuit calendar.
    
      J. Hannon, for app’lt; C. A. Hawley, for resp’t.
   Dwight, J.

The order seems to have been made on the ground that the defense being of an equitable nature, the* cause could not be tried by a jury. But both causes of action stated in the complaint were purely legal, and the only defense to the first was a general denial. Without examining the pleadings further it is manifest that upon this issue, at least, the plaintiff had the constitutional right to a trial by jury.

It is objected that the order is not appealable because it does not affect a substantial right. Of course it is not contended that the right of trial by jury is not a substantial right, but it is said that that right is not affected, because the plaintiff may still, if he desires it, have issues framed, and the questions of fact determined by a jury. The difficulty with this proposition, is that the framing of issues, in an equity cause, is not a right, but rests entirely in the discretion of the court. So that by the order in this case the plaintiff was deprived of his absolute right to a trial" by jury.

The order was therefore both erroneous and appealable, and should be reversed.

All concur.

Order reversed with ten dollars costs and disbursments.  