
    Magnolia Metal Company, Respondent, v. Edward E. Drew and Willard N. Gale, Appellants, Impleaded with George W. Gale.
    
      Complaint — action to restrain the defendant from violating a contract and for damages for a breach thereof— the defendant is not entitled to a jury trial as to the equitable, but is as to the legal cause of action.
    
    Where the complaint in an action sets forth two causes of action, one to restrain the defendants from violating a provision of a contract of sale of a quantity of magnolia metal to them by which they agreed not to sell the metal at less than a certain price, and the other to recover damages for the breach by the defendants of another provision of the contract which required them to purchase a certain quantity of the metal in the future, the defendants are not entitled to a jury trial of any of the issues arising under the first cause of action, but they are entitled to a jury trial of the following issues arising under the second cause of action, viz.: First, has the plaintiff duly performed all the obligations and conditions on its part to be performed under the terms of said contract, and, second, what, if any, damages did the plaintiff sustain because of the failure of the defendants to purchase the metal.
    Appeal by the defendants, Edward E. Drew and another, 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 2d day of December, 1901, denying the said defendants’ motion for an order to frame issues to be tried before a jury.
    
      James D. Fessenden, for the appellants.
    
      Morton Stein, for the respondent.
   Ingraham, J.:

This action is brought to obtain an injunction restraining the defendants from selling and disposing of certain magnolia metal at a price less than that agreed to in writing and to recover the damages that the plaintiff has sustained by reason óf a violation of the agreement by the defendants. The agreement is made part of the complaint. There are two causes of action alleged. The first is one in equity, and presents no issue as to which either party is entir tied as of right to a trial by jury. Whether or not any issue presented under the first cause of action • shall be thus tried is within section 971 of the Code of Civil Procedure- in the discretion of the court, and there' is' nothing in this case that would justify us in interfering with the discretion exercised by the court below in denying the application. The issue as to whether or not there was a breach of this contract by the plaintiff can be as satisfactorily disposed of by the court at Special Term as by a jury. ' As to the second cause of action, however, we think either party is entitled, as a matter of right, to a trial of the issue presented. The second cause of action is to recover -damages for a breach of the contract, in that the defendants have failed, neglected or refused to take the 120 tons of magnolia metal which they agreed to take under the terms of the contract, and that this refusal to purchase this 120 tons of magnolia metal has' caused the plaintiff damage in the amount of $25,000. The first cause of action seeks to restrain the defendants from violating certain provisions of the contract in regard to the sale of the metal purchased prior to the commencement of the action. The second cause' of action asks to recover for the damages sustained by the plaintiff because of a bi’each of another provision of the contract which required the defendants to purchase this metal in the future. These two causes of action are entirely distinct,, and while they are properly united in one complaint, as they both arise oiit of the same contract, they are distinct in their nature, one for equitable relief to enforce certain special provisions of the contract, the other for damages for a failure to comply with certain obligations imposed by clauses or provisions of the contract other than that upon which the - right to equitable relief is based. The issue arising under this second cause of action must, therefore, be sent to a jury for trial. The two issues that appear to be presented upon this second cause of action are : (1) Has the plaintiff duly performed all' the obligations and conditions- on its part to be performed under the terms of said contract, Exhibit “ B ? ” (2) What, if any, damages did the plaintiff sustain because of the fail ure of' the defendants to purchase the 120 tons of magnolia metal ■contracted to be purchased under the provisions of paragraph 9 of the contract, Exhibit “J32”

The order appealed from should, therefore, be reversed, and these issues before indicated directed to be tried by a jury, without costs.

Yak Brunt, P. ■ J.', Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, and issues directed to be tried by a jury, without costs.  