
    Moton D. Moss, Respondent, v. Frederick A. Burnham, Appellant.
    
      Action to set aside a release on the ground of fraud-—a jury trial cannot he claimed, as of right.
    
    An action brought to set aside, upon the ground of fraud, a general release executed by the plaintiff to the defendant of a claim for moneys loaned, and to obtain a judgment for such moneys, is an action in equity, and the defendant is not entitled as a matter of right, under section 968 of the Code of Civil Procedure, to a jury trial of any of the issues; if the court, upon the trial at Special Term, determines the equitable issue in favor of the plaintiff, it may, if it chooses, send the other issues to be tried by a jury.
    Appeal by the defendant, Frederick A. Burnham, from an ordér 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 20tli day of February, 1900, denying his motion to frame issues to be tried by a jury.
    
      Abram I. Elkus, for the appellant.
    
      Franklin Bien, for the respondent.
   Ingraham, J.:

By the amended complaint the plaintiff alleges that he loaned to the defendant various sums of money aggregating $46,000 ; that the defendant repaid to the plaintiff the sum of $5,000, leaving due- and unpaid the sum .of $41,000 ; that subsequently the plaintiff endeavored to collect from the defendant the balance due as aforesaid, and that the defendant, for the purpose of deceiving the plaintiff, made certain false and fraudulent representations by which the plaintiff was induced to execute a general release to the defendant in full settlement of the said balance of $41,000; that said representations were willfully and intentionally false, and were made with intent to, and did, deceive the plaintiff. Judgment is, therefore, demanded that the said release be delivered up and canceled and declared null and void, and that the plaintiff recover from the defendant the balance due. In answer to this amended complaint the defendant denied each and every allegation therein contained, except that he admits and alleges that, before the commencement of the action, the plaintiff, for a valuable consideration, delivered to the defendant a general release. Both parties noticed the action for trial at Special Term. The case was called for trial, and on application of the defendant was adjourned. Subsequently the defendant made this application to have issues framed for trial by a jury.

Unless the defendant was entitled to a trial by jufy as a right, this motion was properly denied, as by rule 31 of the General Rules of Practice such a motion, when a party is not entitled to a trial by jury as a matter of right, must be made within ten days after issue joined. The defendant, however, insists that as this action is to recover for a sum of money only, he is entitled, by section 968 of the Code of Civil Procedure, to a trial by jury. That section provides that, in an action in which the complaint demands judgment, for a sum of money only, an issue of fact must be tried by a jury unless a jury trial is waived or a reference is directed, but this section only applies to an action where the sole relief sought is the recovery of a sum of money, and this action is not one therein specified. The cause of action is an equitable one. There could be no enforcement of the legal right except upon condition that equity should remove the barrier raised by the release, and to remove that-barrier was the relief sought for in the action. (Stono v. Weiller 128 N. Y. 655.) That case decides that where such a cause of action is alleged, the case is properly triable at Special Term. It was there said: It was entirely proper to send the action to the Special Term, because the equitable relief sought was an indispensable condition to the existence of the legal right of action.” That being so, the court properly denied the application to send the issue as to' the right of the plaintiff to this equitable relief to be tried by a jury. It was also quite proper for the court to refuse to direct the issue, as to the loan of money to the defendant, to be tried by a jury until the equitable issue upon which depended the existence of any right to recover from the defendant had been disposed of. If, upon the trial of the equitable issue at Special Term, and the determination thereof in favor of the plaintiff, the court should deem it proper, it may send the other issues to be tried by a jury. It seems to be settled, however, that, in such a case, a party would not be entitled, as a matter of right, to a jury trial. In Lynch v. Metropolitan El. R. Co. (129 N. Y. 274) Judge Gray says: “Underlying the system upon which courts of equity have exercised their power, as I understand it, is the principle that when they have gained jurisdiction of a cause by reason of the infirmity of the courts of law to entertain it, or to give full relief, they will retain their control of the cause generally, and settle up the whole matter between the parties.” And it was further held in that case that the fact “ that a money judgment is ordered against the defendant for the plaintiff’s loss, affords no peculiar ground for .attacking equity’s jurisdiction. That is frequently the case in actions of an unquestioned equitable nature.” Whether or not the issue presented as to-the defendant’s liability should be tried by a jury can properly be determined upon the trial of the action if the court should be of the opinion that the. plaintiff was entitled to judgment setting aside the release.

It follows that the order appealed from was right and it should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  