
    Louis H. Schroeder et al., Plaintiffs, v. Zigmund Ziring et al., Defendants.
    Supreme Court, Special Term, Kings County,
    September 12, 1944.
    
      Emanuel Schwarts for Zigmund Ziring, defendant.
    
      Irving Moldauer for plaintiffs and for Progressive Corrugated Paper Machinery Co., Inc., defendant.
    
      Steckler, Frank & Newmark for Corrugated Container Corporation, defendant.
   Kleinfeld, J.

The defendant Ziring moves for a jury trial, pursuant to sections 425 and 426 of the Civil Practice Act, of counterclaims of codefendants, based on trade acceptances.

For the purposes of this application, these counterclaims must be treated as separate causes of action, and with the same effect as though they had been pleaded in a complaint. Unless the moving party has waived his right to trial by jury, he is entitled to the relief sought. While the case appeared on the Special Term Calendar for Trials on June 21, 1944, there was no “ production of any evidence ” which might have effected a waiver pursuant to subdivision 4 of section 426 of the Civil Practice Act. Nor has there been any waiver by any of the other methods outlined in section 426 of the Civil Practice Act. It is urged, further, that the right to trial by jury has been waived by the pleading of equitable defenses. It appears to he well established that an application for equitable relief constitutes a waiver of jury trial, but there is no waiver where equitable defenses are pleaded. (Susquehanna S. S. Co. v. Anderson & Co., 239 N. Y. 285.) The motion is granted, and the trial at Special Term is stayed, pending the jury trial herein directed. Settle order on notice.  