
    Timothy L. Hayes, App’lt, v. James P. Bainbridge, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 20, 1894.)
    
    Triad—Jury—Framing issues.
    A motion to frame issues for the jury will be denied in an action to set aside a chattel mortgage, where the answer asks for the enforcement of such mortgage by way of counterclaim.
    Appeal from an order denying a motion to frame issues.
    The opinion of Mr. Justice Rumsey at special term is as follows:
    The complaint sets up the giving of the note and the chattel mortgage, and the payment of usury, and prays judgment that both be declared void. The answer sets up the same things, except the usury, which it denies, and prays judgment by way of enforcing the two papers. The facts set up in the complaint and in the answer are precisely the same, and the causes of action in the two pleadings are not separate and distinct When the defendants have answered the plaintiff’s proof, they have exhausted the evidence to prove their counterclaim ; and they can make no proof upon it, except what they offer to disprove the plaintiff’s case, because both claims are settled when the plaintiff’s case has been decided.
    The case is therefore within Cook v. Jenkins, 79 H. Y. 575. Ho reason appears why the court should exercise its discretion by sending the case to a jury for trial. Motion denied, with $10 costs, to abide event
    
      Geo. M. Williams, for pl’ff; Chas. A. Widener, for def’t.
   Per Curiam.—

Order appealed from affirmed, with $10 caste and disbursements.  