
    (79 Hun, 611.)
    HAYES v. BAINBRIDGE.
    (Supreme Court, General Term, Fifth Department.
    June 20, 1894.)
    Juey Trial—Framing Issues.
    In an action to adjudge a note and chattel mortgages void on the ground of usury, where defendant denies the usury, and prays judgment against plaintiff, it is not error to deny plaintiff’s motion to frame issues for the jury on the .counterclaim, as, when defendant has answered plaintiff’s proof, he has also established his case.
    Appeal from special term, Monroe county.
    
      Action by Timothy L. Hayes against James P. Bainbridge. Plaintiff’s motion to frame issues raised by defendant’s counterclaim to be tried by jury was denied, and plaintiff appeals. Affirmed.
    The opinion of Mr. Justice RTJMSEY 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 lias been decided. The case is therefore within Cook v. Jenkins, 79 N. Y. 575. No 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.
    Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
    Geo. M. Williams, for plaintiff.
    Chas. A. Widener, for defendant.
   PER CURIAM.

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