
    Salvatore Cantoni, Respondent, v. Elsa Forster, Appellant.
    (New York Superior Court —
    General Term,
    May, 1895.)
    The framing.of issues for a jury in a purely equitable action is entirely a matter of discretion, and will not be granted solely because the action will pfobably involve a conflict of evidence.
    Appeal from order denying defendant’s motion for an order settling issues for trial by jury.
    Action for specific performance of a contract of settlement and compromise, and to restrain the prosecution of a pending action, and any future actions, against the plaintiff based upon claims accrued, or claimed to have accrued, prior to the date of such contract.
    The following is the opinion of the court below :
    McAdam, J. The action is of purely equitable cognizance, and the framing of issues therein entirely matter of discretion. The defendant is not entitled to a jury trial either by constitutional considerations or those flowing from express provisions of law, and no right is violated by the denial thereof. Colie v. Tifft, 47 N. Y. 119; Colman v. Dixon, 50 id. 572; Powell v. Waldron, 89 id. 328; Wright v. Nostrand, 94 id. 31; Carroll v. Deimel, 95 id. 252; Acker v. Leland, 109 id. 5; Randall v. Randall, 114 id. 499; Lynch v. R. R. Co., 129 id. 274; Shepard v. R. R. Co., 131 id. 215; Church v. Kelsey, 121 U. S. 282; Arkansas, etc., Co. v. Man, 130 id. 69 ; Cates v. Allen, 149 id. 451.
    If the action were to be ordered on the jury calendar solely because it would probably involve a conflict of evidence, it is difficult to imagine a cause which ought to be retained on the equity calendar, for, aside from demurrers, every trial thereat involves more or less of conflict. Especially is this true in suits to set aside transfers as fraudulent—elevated railway controversies and the like.
    There is nothing in the present contention which necessitates calling in the aid of a jury, or which even suggests that a decision equally speedy and as satisfactory could not be reached without such assistance. For these reasons the defendant’s application must be denied, with ten dollars costs.
    
      Samuel II. Randall, for. appellant.
    
      Charles W. Brooke {Louis Edwin Bomeisler, of counsel), for respondent.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements, upon the opinion filed below.

Present: Sedgwick, Oh. J., and Freedman, J.

Order affirmed, with ten dollars costs and disbursements.  