
    George Waite Tubbs, Resp’t, v. Robert C. Embree, Individually and as Trustee, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    Trial—Transfer from calendar.
    Where the answer, in an action for damages, admitted plaintiff’s cause of action and set up a counterclaim for equitable relief, and the cause was placed on the circuit calendar and noticed for trial by both parties, the defendant’s conduct is equivalent to a consent to a trial at circuit, and a motion, made by him two months afterwards, to strike the cause from the / circuit court, and place it on the special term, calendar, is properly denied, though there is no issue of fact requiring trial by jury.
    Appeal from an order, denying a motion to strike the cause from the circuit court calendar and to place it on the special term calendar.
    
      Robert G Embree, in pro. per.; Gratz Nathan, for resp’t.
   Per Curiam.

The action was brought by the vendee in a contract for the purchase of real property to recover damages for the breach of such contract by the vendor, the breach consisting of the inability of the vendor, by reason of the defect in the title, to give a good or marketable title to the premises at the time fixed for closing the title. Such inability, is, in effect, admitted by the answer, but byway of counterclaim defendant asked for equitable relief, demanding specific performance, upon the claim that, within a few days after the date for closing, all objections to the title were cured and obviated, and the deed was tendered before suit brought. It will thus be seen that, by the pleadings, there was practically no issue of fact requiring a jury trial, and as the real question in the case would turn upon the counterclaim set up in the answer, which called for equitable relief, had the motion been made in time it would have been proper to have granted it to the extent of striking the case from the circuit calendar and remitting it to the special term calendar, or at least of staying the trial of the action at law until the equitable defense set up by the answer could be disposed of. The defendant, however, did not move promptly. The plaintiff served notice of trial for circuit court, and on the same day the defendant served a similar notice for the same term of the circuit court; and it was not until the lapse of two months thereafter that this motion was made to strike the cause from the circuit calendar, and place it upon the calendar of the special term. We think that, under the authority of Mackellar v. Rogers, 109 N. Y. 468; 16 St. Rep. 406, such conduct amounted to a distinct waiver on the part of the defendant, and was equivalent to a consent to a trial at circuit. In that case a counterclaim was interposed in an equity action, the defendant demanding affirmative judgment for money. Both parties noticed the issues for trial at special term, where, upon the cause being reached, the defendant demanded a trial by jury, which was denied. It was held (headnote) that-, by noticing the cause for trial at a court of which a jury forms no part, the defendant waived his right to a jury trial, and consented to a trial by the court, and that the granting or refusal of the request was a matter of discretion, and its exercise not reviewable here.”

Upon the facts appearing, we think that the discretion vested in the special term was wisely exercised, and that the order appealed from should therefore be affirmed, with $10 costs and disbursements.  