
    Edith M. Brewer, Respondent, v. Town of Starkey, Yates County, Appellant.
   Memorandum: In this action under article 15 of the Real Property Law for a determination of a claim to real estate, plaintiff claims that defendant waived its right to a jury trial by asking equitable relief in its affirmative defense by way of an injunction enjoining the plaintiff from interfering with the public highway, title to which is in question. We are not in accord with such contention. The facts set forth in the affirmative defense show no need for affirmative relief in order to afford complete protection to the defendant. Sections 466 and 467 of the Civil Practice Act relating to compulsory references are not applicable to the facts herein. The right to a jury trial was improperly denied (United States Fidelity & Guar. Co. v. Goetz, 285 N. Y. 74). All concur. (The order refers the action to an official referee to hear, try and determine.) Present — Taylor, P. J., MeCum, Love, Vaughan and Piper, JJ.  