
    COLVILLE v. CHUBB.
    
      N. Y. Supreme Court, First Department, Special Term ;
    
      February, 1891.
    1. Trial of counterclaim.] Defendant is entitled to have a counterclaim for equitable relief tried at special term, although plaintiff’s, cause of action is triable at circuit.
    2. The same.] In an action on an insurance policy, the orderly conduct of the case requires that the trial at circuit of the issues raised by the complaint be stayed until the trial of the issues under a counterclaim for the reformation of the policy has been, had at special term.
    Motion that the trial of a cause at circuit be stayed until after the trial and determination at Special Term,, of issues raised by the reply to an equitable counterclaim.
    Action by John Colville and others against Percy Chubb to recover on a marine insurance policy for the loss of a cargo of fruit. The answer was á specific, denial of some of the material allegations, and a counterclaim setting forth a clerical error in the policy, and asking for a reformation. The reply contained & denial, and set up a distinct defense.
    
      J. Langdon Ward, for defendant in support of the, motion.
    
      Anson Beebe Stewart, for plaintiff, opposed.
    I. Cause properly triable at circuit court may adopt, the findings of the jury where equitable relief is asked (citing Code Civ. Pro. §§ 968, 2339, 974, 976; Carroll v. Deimel, 13 Weekly Dig. 401; Brady v. Cochran, 13, 
      Id. 255 ; Zoller v. Grant, 21 Id, 325). By the application the defendant could delay the trial (citing McKeller v. Rogers, 109 N. Y. 471).
   Ingraham, J.

The answer in this case sets up as a counterclaim an equitable cause of action and demands equitable relief, viz., a cause of action to have the policy of insurance sued on reformed. By section 974 of the Code, it is provided that where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by defendant against the plaintiff for the cause of action stated in the complaint and demanding the same judgment. If the defendant had brought an action against plaintiff to reform the policy of insurance it is clear that such an action would have been tried at Special Term, and under the section of the Code cited I think it clear that the defendant is entitled to have the issue of fact arising upon the counterclaim and the reply thereto tried at special term. In no other way can effect be given to this section. After the determination of that issue either by a reformation of the policy or by a denial of the relief asked for in that respect, the plaintiff can then bring on for trial before a jury the issue of fact raised by the allegations of the complaint and the answer thereto, and obtain such a judgment as he will then be entitled to.

The right to a trial by jury of the cause of action that plaintiff has the right to insist shall be so tried, is not taken away any more than it would have been if the defendant had commenced this action for the reformation of the policy first. I think also that the orderly conduct of the case requires that this issue should be tried where it can be properly disposed of before the question of the liability of the defendant on the policy of insurance is to be tried by the jury, for before such liability can be determined it is necessary that the exact terms of the policy should be ascertained, and that could not be done until a judgment upon a cause of action set up as a counterclaim is determined (Keller v. Rodgers, 109 N. Y. 472), does not apply, and this practice was adopted and approved in Post v. Moran (10 Daly, 502).

I think, therefore, the motion should be granted and the issue raised by the counterclaim directed to be tried at special term; the trial of the issue raised by the answer to the complaint to be stayed until the determination of such trial at special term; $10 costs to abide the event.  