
    Anna Whitson, Appellant, v. John G. Whitson, Respondent.
    First Department,
    July 10, 1916.
    Trial—right to trial by jury — action by wife for reimbursement for moneys expended for support.
    Where in an action by a wife against her husband from whom she lives apart, based upon a contract claimed to have been assumed by him upon his marriage, to recover a sum of money as reimbursement for moneys necessarily expended by her for the support of herself and children, the only possible relief is a money judgment, she is entitled to a trial by jury.
    Where a money judgment only is properly demanded the action is a legal one and triable by a jury. If, however, the money judgment cannot be rendered without the assistance of some equitable relief which the plaintiff requires, then, it seems, the plaintiff is not entitled to a jury trial because she has only demanded part of the relief which she needs.
    Appeal by the plaintiff, Anna Whitson, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1916, striking this cause from the trial calendar and placing it upon the Special Term calendar on the ground that the action is triable by the court without a jury.
    
      Aaron William Levy, for the appellant.
    
      Walter E. Ernst, for the respondent.
   Smith, J.:

This action is brought by the plaintiff against her husband, from whom she lives apart, to recover a sum of money as reimbursement for moneys necessarily expended by her for the support of herself and her children. By section 968 of the Code of Civil Procedure it is provided that an action in which the complaint demands judgment for a sum of money only must be tried before a jury unless a jury trial be waived. In Boyd v. Boyd (12 Misc. Rep. 119; affd., 146 N. Y. 403) an action was brought to recover possession of real property, the plaintiff’s title being based upon equitable rights. It was held that this was an action in ejectment within section 968 of the Code, in which either party could demand a trial by-jury, but that while the right to trial by jury originally existed such right had been waived by the -plaintiff.

In O'Brien v. Fitzgerald (143 N. Y. 381) the opinion in part reads: I think those courts are right in saying that the formal demand of relief with which the complaint concludes is not decisive of the legal or equitable character of the action. We so held in Bell v. Merrifield (109 N. Y. 202), saying that where an answer had been interposed and facts were stated in a complaint which show that it is of an equitable nature, and that the cause of action is simply equitable, we do not think a case is made for trial by jury under the Code (§ 968), merely because the complaint improperly asks for a money judgment only.' That language clearly and plainly implied that a demand of judgment for money only would stamp the action as one at law, unless the facts pleaded showed an equitable cause of action simply, and that the relief asked was, therefore, improperly confined to a money demand merely. In other words, our doctrine was that the demand" of money only, on its face and primarily, characterized the action as one at law, but not so conclusively as to prevent a different result where the action was clearly equitable rather than legal in its nature, and purely legal relief is improperly demanded.

At page 382 Judge Finch further says: Where the action is for the recovery of money only it is classed as legal and is triable by a jury. ”

These authorities would seem' to indicate — and there are none to the contrary — that where a money judgment only is properly demanded the action is a legal action and triable by a jury. If, however, the money judgment cannot be rendered without the assistance of some equitable relief which the plaintiff requires, then the plaintiff is not entitled to - a jury trial, because he has only demanded part of the relief which he needs.

In the case at bar the only possible relief is a money judgment. The marriage did not have to be declared or annulled. Plaintiff’s right of action is based upon a contract duly claimed to have been assumed by the husband upon his marriage. Within all of the authorities where no equitable relief is demanded or needed and a money judgment only is sought the plaintiff is entitled to a trial by jury of the issues made by the pleadings.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the cause restored to the Trial Term calendar for trial upon a day to be fixed by the court.

Clarke, P. J., McLaughlin, Scott and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, ■and motion denied, with ten dollars costs, and cause restored to Trial Term calendar for trial upon a day to be fixed by the court.  