
    Thomas McKellar, Resp’t, v. George W. Rogers, Impleaded, etc., App’lt.
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    1. Practice—Jury trial—Waiter of—Code Civil Procedure, §§ 970 974,1019.
    In an action for the foreclosure of a mortgage, the answer expressly admitted the material allegations of the complaint, but set forth new matter, characterizing it as a counter claim and demanding an affirmative judgment. The issues thus tendered by the defendant were triable before a jury. Each party noticed the case for trial, at the then next special term
    
      (a court for which no jury could be drawn). Held, an uneqivocal election by both parties to have the case tried without a jury.
    .3. Same—Order—When discretionary and not review able by court OP APPEALS.
    When the cause had been reached for trial, at special term, the defendant demanded a trial by jury of the counter-claim, and this application being denied, on the ground that the proper mode of applying for a jury trial under such circumstances, was upon notice of motion to have special issues sent to a jury for trial. The defendant then asked leave to make application at special term for the framing of issues, but it was denied. Held, that to grant or refuse such request was a matter of discretion. That its exercise was not the subject of reveiw in the court of appeals.
    Appeal from a judgment of the general term of the ■superior court of New York county, affirming a judgment of the special term, in favor of the plaintiff, decreeing foreclosure and sale of mortgaged premises.
    
      Martin J. Keogh, for app’lt; George M. MacKellar, for resp’t.
   Danforth, J.

The action was for the foreclosure of a mortgage. The answer expressly admitted the material allegations of the complaint, but set forth new matter, characterized it as a counterclaim and demanded an affirmative judgment for $31,115.57, money due, beside $20,000 damages for breach of contract. The plaintiff, by reply put these matters in issue. The defendant gave notice that the issues of fact so joined would be brought to trial at the then next special term, and at the same time a like notice was given by the plaintiff. At the time mentioned both parties appeared, and, as the record states, the cause having been reached for trial, counsel for defendant “demanded a trial hy jury of the counterclaim set up in his answer, as his constitutional and legal right.” This application was denied on the ground “ that the proper mode of applying for a jury trial under such circumstances is upon notice of motion to have special issues sent to a jury for trial.” The defendant then asked leave to make application at special term for the framing of issues, but it was denied. To grant or refuse such request was clearly a matter of discretion and its exercise is not the subject of review in this court. The trial, however, went on and resulted in a judgment for the plaintiff according to the prayer of his complaint. It was affirmed by the general term, and we have only to inquire whether the defendant was under the circumstances entitled to a jury trial as a matter of right.

The appellant’s contention rests upon section 974 of the Code of Civil Procedure, which provides 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 the defendant, against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment.”

The conditions upon which the right depend exist in favor of the defendant, but that right is not absolute or unqualified; it is relative and limited, and in the words of section 974, “ within” certain “foregoing sections ” only is “ a counterclaim to be deemed an action.” We find nothing there which required a court to sanction the course pursued by the defendant. If tolerated it would enable a person sued to postpone and delay the plaintiff in the prosecution of a just cause until at a convenient time and before another tribunal he had presented a cause of action subsequently brought into court, and the determination of which has no necessary connection with the plaintiff’s demand in suit. It would, moreover, permit him to do this after selecting a different court for the trial of his issue and evade that trial at the moment it was to commence by the expression of his mere wish to go into a different forum, thus-putting his adversary at defiance and interrupting the court in the transaction of business which he himself had in a formal manner brought before it.

It is to be conceded that the mode of trial of the issue tendered by his counter claim might be the same as if it had arisen in an action. But a counter claim in an equity suit is not a case where a right to a jury trial existed at common law. Chapman v. Robertson, 6 Pai., 627; Jennings v. Webster, 8 Pai., 503. It is not secured by the constitution. It is not to be had as of course, for the action is. not within section 970 of the Code (supra), the complaint-demanding other judgment than for a sum of money. It is conferred by statute (section 974), and so is within section 970 (supra), which requires an application upon notice to the court for an order directing the questions arising upon the issues to be stated for trial. No such application was made. Moreover the right given by section 974, attached when by the reply issue was joined upon the allegations of the answer. The subsequent step taken by the defendant in noticing the issues so joined for trial at a court of which a jury forms no part was inconsistent with any intent to take advantage of the right to a jury trial. That right could be waived, and by this notice the defendant must be held to have consented to a trial before the court and without a jury.

Neither the Code nor the cases cited by the appellant are opposed to this view. The Code (section 1009) specifies certain modes by which trial by jury may be waived, but the provision is not exclusive, and the same effect may be given to any evidence, either of conduct or acquiescence, by a party, which in other cases would require a conclusion that a right designed for his benefit had been waived.

In Wheelock v. Lee (74 N. Y., 496), the plaintiff joined equitable with legal causes of action, so that in one of its aspects, the action was triable at special term,D and the court held that the defendant by noticing it for trial, did not waive his right to have the issues on the legal causes of action submitted to the jury. In the case before us the only issues to be tried were those tendered by the defendant. They are triable before a jury, but if the parties consented, might also be tried before the court without a jury. Bach party noticed the case for trial before a court for which no jury could be drawn, and the notice which carried the cause there must be deemed an unequivocal election by both parties to have the case so tried.

In Davison v. The Associates of the Jersey Co. (71 N. Y., 333), the form of the action was in equity. The plaintiff demanded a jury trial because, as he alleged, the evidence would show a cause of action at common law for damages merely. It was held to have been properly denied, the court saying that “the plaintiff elected to bring an equitable action and thereby elected the forum in which it should be tried.” Less effect should not be given to the formal notice which not only discloses a party’s own choice as to the mode of trial, but requires the adverse party to attend according to that choice.

We agree, therefore, with the conclusion of the general term, and affirm the judgment.

All concur; Earl, J., in result.  