
    Samuel Marshall Evans, as Trustee in Bankruptcy of the Estate of J. Samuel Jacobs, Bankrupt, Respondent, v. National Broadway Bank, Appellant.
    
      Equity — trial of issues by a jury in New York city — when not ordered.
    
    An application for a jury trial, of issues arising in an action in equity brought in the county of New York, will not, in view of the congested condition of the Trial Term calendar in that county, be granted except in an extraordinary case.
    Appeal by the defendant, National Broadway Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1903, stating the issues of fact in this action and directing a trial of such issues by a jury.
    
      Henry W. Clark, for the appellant.
    
      Herbert R. Limburger, for the respondent.
   Per Curiam :

This action was brought by the plaintiff as trustee in bankruptcy of the estate of J. Samuel Jacobs to set aside an assignment to the defendant of accounts receivable aggregating about $47,000, made by the bankrupt before the adjudication in bankruptcy, as having been made in fraud of creditors, and as constituting voidable preferances within the meaning of the Bankruptcy Law. (See 30 U. S. Stat. at Large, 562, § 60; Id. 564, § 67, subd. e.) In the moving affidavits the plaintiff stated that the reason why the issues should be stated and tried by a jury was that “ The questions involved in' the issues proposed to be submitted to a jury are such as business men are accustomed to and by their business experiences are peculiarly well fitted to determine. These issues are briefly that of the assignments of the accounts, the insolvency of the bankrupt at the time of the assignment, the intent thereby to hinder^ delay or defraud the creditors of said bankrupt other than the defendant, whether the defendant was a purchaser of these accounts in good faith and for a present fair consideration, and the issue of preference to the defendant over the other creditors.”

The questions of fact which the plaintiff wished to have thus submitted were in brief as follows: .First. Did the bankrupt make an Assignment, of his accounts receivable to the defendant ? Second. Was he at that time solvent or insolvent % Third. Was such assignment made with intent to hinder, delay or defraud his other creditors ? Fourth. Was the defendant a purchaser of said accounts, and were they transferred in good faith and for a present fair consideration ? Fifth. Did said bankrupt, within four months prior to the time of said assignment, make a transfer of any of his property to the defendant, the effect of the enforcement of which would be to enable the defendant to obtain a greater percentage of its debts than any other creditor of the same class As defendant % Sixth. If the last preceding question is answered in the affirmative, was. the said bankrupt insolvent at the time he made such transfers, and was it made with intent to give a preference to the defendant over his other creditors of the same class, and did the defendant have reasonable cause to believe him insolvent at that time ? The court below granted plaintiff’s motion, and from the order entered thereon this appeal is taken.

The action is in equity, and, therefore, a trial by jury is not a matter of right, but the right to order it rests in the discretion of the court. (Code Civ. Proc. § 971.) This court has recently announced that “in the condition of the calendars in' this judicial district it is hardly proper that cases in which the parties are not entitled to a jury trial, as a matter of right, should be sent to be tried by a jury unless such a trial is essential for the proper administration of justice.” (Plant v. Harrison, 52 App. Div. 434.) In the proper administration of justice a speedy determinatiomof questions in controversy is essential and necessary. The burdened condition, therefore, of the jury calendar is a substantial consideration in the determination of motions of this character, as the effect of granting the same is to postpone for a considerable period of time the determination of the controversy. The application to be favorably considered, therefore, should present some exceptional features showing a necessity for such a course in the proper administration of justice. We do not think that this case presents any such exceptional features. The issues raised by the pleadings are not unusual, and are such as in ordinary course are tried and disposed of by the court sitting at Special Term, and little difficulty attends upon reaching a correct conclusion and doing substantial justice in disposition of the issues. Actions to set aside transfers as fraudulent, or issues where there is likely to be a conflict of evidence would furnish a ground to apply for a jury trial in every case, and the same reasons might safely be assigned upon such application as have been assigned in the present case. When it is borne in mind that the power remains in the trial court at any time to send such issues to be disposed of by a jury upon its own motion, we think the trial court should retain the case, and if, when presented for trial, it is found either necessary or more desirable to have the jury settle the conflict, then to make the order; but the bare statement that a jury of business men are better qualified to pass upon the questions presented in these issues is not sufficient to send the issues to a jury. Such reason may be said to apply to nearly every equity case. For practical and satisfactory results the present mode of trial by the judge is ample to protect the rights and do justice between the -parties. We think, therefore, that this motion should not have been granted.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  