
    THOMAS MACKELLAR, Respondent, v. GEORGE W. ROGERS, Impleaded, &c., Appellant.
    
      Jury trial of cause of action at law in counter-claim to an equitable action triable by the court—right of—requisites to obtain. '
    
    Where a counter-claim, founded on a cause of action at law, is interposed . to a complaint in an action for equitable relief, triable by the court without a jury, if a jury trial of the issues arising on such counter-claim is desired by either party, he must, within ten days after issue joined on the counter-claim,, give notice under Rule 81, of a special motion to be made on the pleadings; that the whole issue, or any specific questions of fact involved therein, be tried by a jury. If he omits to do this, ho waives a jury trial, and cannot, on the trial at special term before the court, claim a jury trial of the issues on the counter-claim, as matter of right.
    In such case; it is discretionary with the court to grant a postponement of the trial for the sole purpose of enabling said party to make such special motion.
    Sections 970 and 974 Code, construed.
    
      Before Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Appeal from a judgment of the special term decreeing foreclosure and sale of mortgaged premises.
    The facts and exceptions appear in the opinion.
    
      Martin J. Keogh, attorney, and of counsel for appellant, argued:
    I. The counter-claim sets forth a cause of action at law, for damages for a breach of contract, and demands judgment for a sum of money only. It contains matter for which a separate cause of action might be maintained by defendant against plaintiff and upon which defendant is entitled to a jury trial as matter of right {Code, §§ 968, 974; Cook v. Jenkins, 79 N. Y. 575; Kain v. Delano, 11 Abb. N. S. 29 ; Hewlett v. Wood, 62 N. Y. 75 ; Clarke v. Brooks, 26 How. 285 ; McDonnellv. Stevens, 9 Hun, 28 ; Ross v. Combes, 37 Super. Ct. 289 ; Litchfield v. Dezendorf, 11 Hun, 358 ; Brady v. Cochran, 23 Ib. 274). For the purposes of this argument, the court must look at defendant’s counter-claim, as if it was in the form of a complaint in an action brought upon it by defendant against plaintiff (Code, § 974; Cook v. Jenkins, 79 N. Y. 575). Here defendant has interposed a counter-claim, and has demanded an affirmative judgment thereupon. An issue of fact arises upon this counter-claim made by plaintiff’s reply. Defendant is therefore clearly within Code, § 974. “ In each of the following actions an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is directed : (1.) An action in which the complaint demands judgment for a sum of money only” (Code, § 968). Here the judgment demanded is for a sum of money only. Even if an account were involved, it would not deprive defendant of his constitutional right to a jury trial (Bell v. Mayor, 11 Hun, 511; Camp v. Ingersoll, 86 N. Y. 433 ; Van Rensselaer v. Jewett, 6 Hill, 373 ; Thomas v. Reab, 6 Wend. 503; Magown v. Sinclair, 5 Daly, 63 ; Keep v. Keep, 58 How. 139 ; Townsend v. Hendricks, 40 
      How. Pr. 143). The only recovery defendant can have is for damages (Jerome v. Scudder, 2 Bob. 169; Smith v. Kelly, 56 Me. 64 ; Love v. Cobb, 63 N. C. 324; Youell v. Allen, 18 Mich. 108 ; Vigers v. Pike, 8 Clk. & Fin. 582 ; Nelson v. Bridges, 2 Beav. 239 ; Story on Equity, § 769 ; Sternberger v. McGovern, 56 N. Y. 12 ; McDonnell v. Stevens, 9 Hun, 28; Wiswall v. McGown, 2 Barb. 270 ; Shepard v. Sanford, 3 Barb. Ch. 127 ; Newham v. May, 13 Price, 749 ; Blore v. Sutton, 3 Meriv. 247; Clifford v. Brooks, 13 Vesey, 130 ; Story on Equity, §§ 794, 749 ; Bradley v. Aldrich, 40 N. Y. 504; Ross v. Combes, 37 Super. Ct. 289).
    II. The cause of action in this case in favor of defendant, is clearly distinguishable from Cook v. Jenkins, (79 N. Y. 575), and Whiton v. Spring (74 Ib. 169). Those were equity actions. This is clearly a common law action, and defendant’s right to have it tried by a jury is absolute (Kain v. Delano, 1 Abb. N. S. 29 ; Hewlett v. Wood, 62 N. Y. 75; Constitution of N. Y., art. 1, § 2).
    III. Since it is clear that defendant is entitled to a jury trial upon the cause of action arising upon his counterclaim, the remaining inquiry is, as to whether he has waived his right. We submit that the defendant has not waived it, and that his legal rights have been preserved {Code, § 1009 ; Wheelock v. Lee, 74 N. Y. 495 ; Davidson v. Asso. of Jersey Co., 71 N. Y. 333; aff’g 6 Hun, 470; Hennequin v. Butterfield, 43 Super. Ct. 411; Hudson v. Caryl, 44 N. Y. 553 ; Litchfield v. Dezendorf, 11 Hun, 358). These authorities clearly dispose of the question of waiver. In Hand v. Kennedy (83 N. Y. 149), and Derham v. Lee (87 N. Y. 599), defendants lost their right to a jury trial solely because they failed to demand it, in the latter case, and failed to secure a ruling upon this demand for a jury in' the former.
    IV. The court erred in holding that the practice required the defendant Jo move at special term to frame issues, to be tried by a jury. It is only in a case where a party is not entitled to a jury trial as matter of right, that an order may be made framing issues for a jury (Code, § 823 ; Snell v. Loucks, 12 Barb. 385 ; Const, art. I. § 2). (1) The fact that the jurisdiction of courts of law and courts of equity are blended, and that the Code has abolished the distinction between remedies at law and in equity, does not deprive a party of a right to trial by jury, in a case where, prior to the adoption of the Code, he had such right, and any statute or provision of the Code, which would direct a court to frame issues in a common law action, would be unconstitutional {Const, art. I. § 2). (2) The language of the constitution on this point is clear and explicit, so as to preserve the ancient right to a jury in all cases in which it existed prior to the adoption of the constitution. The language is as follows: “§ 2. The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever.” (3) This constitution was adopted in 1846. The only inquiry, then, is whether a party in an action to recover damages for breach of contract, which is a simple action at law, was entitled to a jury trial in such an action prior to 1846. There can be no question on this point. No one will contend that an action for damages for breach of contract was within the jurisdiction or cognizance of a court of chancery prior to 1846. (4) Before the constitution of 1846, issues could be framed only in chancery suits, in a proceeding which, under the old practice, was denominated a “ feigned issue ” (3 Blackstone’s Com. 452 ; Baylies’ Trial Prac. 272 ; Snell v. Loucks, 12 Barb. 385 ; Laws 1838, p. 244 ; Griffith v. Griffith, 9 Paige, 315 ; Laws 1839, p. 292 ; Chancery Rule, 96; Lord Teynham v. Tyler, 6 Bing. 561; Barker v. Ray, 2 Russ. 63 ; Carroll v. Deimel, 95 N. Y. 252). (5) The term “ feigned issue” is thus defined by elementary writers : 66 An issue brought by consent of the parties or by the direction of a court of equity, or of such courts as possess equitable powers, to determine before a jury some disputed matter of fact which the court had not the power or is unwilling to decide ” {Bouvier’s Law Dict.). (6) The Code (§ 823) has abolished “feigned issues” and substituted instead the practice of framing issues. The result is that in equity suits, instead of resorting to the old practice of a feigned issue, the court makes an order to frame issues to be tried by a jury. (7) This practice, however, has nothing to do with common law actions. The court cannot frame issues in such actions under section 970 or 971, any more than a court of law could resort to a “feigned issue ” in an action for trover or conversion. And if any of these sections did compel the framing issues in common law actions, they would be unconstitutional in that respect. But the language used in the sections carefully provides against such a result. (8) In 823, the language as to framing issues is, that such issues may be framed “in any case, where neither party can, as of right, require a trial by jury.” (9) It follows then, that if either party can, as of right, demand a jury trial, issues cannot be framed. Now, what would be “ the mode of trial on this counter-claim,” if it arose in an action brought by defendant against plaintiff ?” (Code, § 974). (10) So the language of section 971 is equally guarded : “In an action where a party is not entitled, as of right, to a trial by jury.” (11) The language of section 970 is “where a party is entitled by the constitution or by express provision of law, to a trial by a jury, of one or more issues of fact, in an action not specified in section 968 of this act.” (12) It follows, that if defendant’s counter-claim “ arose in an action brought by defendant against the plaintiff ” it would fall within such actions as are specified in section 968 ; because the defendant asks no equitable relief, but “demands judgment for a sum of money only.” It is clear, therefore, that section 970 has no application to this case, and that defendant is entitled to a trial by jury as a matter of right. (13) In Carroll v. Deimel (95 N. Y. 252), the action was to foreclose a mortgage. The defense wras simply payment. The court held that the action was an equity action, and that findings of a jury, if afterwards disregarded by the chancellor, may be reviewed on appeal, but' in that case there was no counter-claim upon which defendant would have been entitled to bring a separate action against plaintiff. (14) Here, such a counter-claim is pleaded, and the question before the court is, “ If the counter-claim had arisen in an action brought by defendant against the plaintiff, for the cause of action stated in the counter-claim,” would he, in such an action, be entitled, as of right, to a trial by jury. Because ‘£ the mode of trial ” cannot be changed, for the reason that the cause of action happens to be embraced in the counter-claim, instead of in the original complaint {Code, § 974). (15) The court, therefore, must consider the question just as if no equity suit for the foreclosure of the mortgage were pending. Such suit has no bearing on the particular inquiry presented on this appeal.
    
      George M. MacKellar, attorney, and of counsel for respondent, argued:
    I. The defendant has no constitutional right of trial by jury of the questions raised by his counter-claim {Constitution 1846, art. 1, § 2 ; Chapman v. Robertson, 6 Paige, 627 ; Jennings v. Webster, 8 Ib. 503). Under the Code of Procedure, actions to foreclose mortgages wore tried by the court at special term, without a jury (Code Proc. §§ 253, 254 ; Goold v. Bennett, 59 N. Y. 124). The fact that an answer was interposed, demanding an affirmative judgment, did not alter the character of the action or the mode of trial (Welsh v. Darragh, 52 N. Y. 590; Townsend v. Hendricks, 40 How. Pr. 143; Verplanck v. Kendall, 45 Super. Ct. 525 ; Matter of Empire City Bank, 18 N. Y. 199). Under the Code of Civil Procedure such actions are to be tried by the court without a jury (section 969), unless the defendant proceeds to obtain a jury trial under the provisions of sections 974 and 970.
    II. The only right the defendant has to a jury trial of the counter-claim set up in the answer, is by virtue of the provisions of section 974 of the Code of Civil Procedure. Section 974 is not mandatory upon the defendant. Kor under that section can the court or the plaintiff compel a defendant to submit to a jury trial. It is optional with the defendant whether he will have such a trial or not. But if he wishes to avail himself of the provisions of section 974, and desires his counter-claim to be tried by a jury, he must proceed to obtain a jury trial in the manner directed by and in accordance with the provisions of section 970. Section 968 specifies the actions which must be tried by a jury unless a jury trial is waived, or a reference is directed. This is not one of the actions specified in section 968. That section covers cases where the complaint demands judgment for a sum of money only, and actions for ejectment, &c., specified in subdivision 2. The complaint in this action does not demand judgment for a sum of money only.
    III. Whatever right the defendant had to a jury trial he waived by failing to comply with the requirements of section 970 of the Code, and general rule 31. The defendant’s failure to move for the framing of issues within ten days after issue joined, and his giving a notice of trial for the special term, constituted a waiver of' his right to a jury trial under section 974. By failing to claim it at the proper time or in the proper manner, or by any conduct which would be sufficient to constitute a waiver of rights in other cases, the party is deemed to have wraived his right to trial by jury, whether that right be constitutional or legal (Baird v. Mayor, 74 N. Y. 382 ; Barlow v. Scott, 24 Ib. 40 ; Greasen v. Keteltas, 18 Ib. 491; West Point Co. v. Reymert, 45 Ib. 703 ; McKeon v. See, 51 Ib. 300).
    IV. The postponement or adjournment of the trial being discretionary with the trial judge, the exception to the refusal to postpone was not well taken.
   By the Court.—Freedman, J.

The only question presented by the exceptions is whether the trial of the action should or should not have been postponed until after a trial by jury was had, of the issue arising upon defendant’s counter-claim.

The action was brought for the foreclosure of a mortgage for $15,000, and interest. By his answer the defendant admitted all the facts set forth in the complaint, and then set up a counter-claim against the plaintiff for about $51,000, for a breach of contract, upon which he demanded an affirmative judgment. The plaintiff replied to the counter-claim. Both parties noticed the case for trial at special term, but when it was called for trial in its order upon the calendar, the defendant, before any evidence was given, demanded a trial by jury of the cause of action embraced in his counter-claim as his constitutional and legal right. The motion was denied upon the ground that the proper mode of apptying for a jury trial under such circumstances was by special motion to have issues framed and sent to a jury. To this ruling and denial of his motion, the defendant duly excepted.

The defendant then asked leave to make application at special term for the framing of issues. This motion was also denied, and the defendant duly excepted. The defendant thereupon withdrew from the case.

There can be no doubt that the claim of the defendant, as stated by the counter-claim, is one upon which, in a separate action directly brought upon it, he would be entitled to a jury trial as matter of right. But from this it by no means follows that he can rightfully claim the same mode of trial in the present action.

The constitutional right to a jury trial extends only to cases in which it existed prior to the adoption of the constitution. In the case at bar there is no such right, because the action is an equitable one which at all times was, and now is, triable by the court alone, formerly by the court of chancery, now by the court at special term, and because in the court of chancery of this state the right of set-off in such an action existed solely by virtue of the provisions of the ¡Revised Statutes (Chapman v. Robertson, 6 Paige, 627 ; Jennings v. Webster, 8 Ib. 504), which conferred no right of trial by jury, although the court had discretionary power to frame a feigned issue and order that to be tried by a jury.

Since that time the practice in this respect has been considerably changed. The jurisdiction of courts of law and of courts of equity has been blended ; feigned issues have been abolished, and the practice of framing issues has been substituted, and the right to interpose counterclaims has been enlarged. It consequently remains to be seen whether there is any statutory ground for the contention of the defendant.

Section 974 of the Code of Civil Procedure provides that where the defendant interposes a counter-claim, 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 counter-claim, and demanding the same judgment.

This section, therefore, upon an issue arising-upon a counter-claim like the one in suit, confers a right of trial by j ary, because the defendant would be entitled to such a trial, if he were to bring an independent action upon the same claim.

But the right is a purely statutory one. The section is not mandatory upon the defendant. It gives him an option whether he will have such a trial or not. If he wishes to obtain the benefit of the statute in an action triable by the court alone, he must proceed to exercise his option and take certain steps. His remedy is under section 970, which provides that, where a party is entitled, by the constitution or by express provision of law, to a trial by a jury of one or more issues of fact, in an action not specified in section 968, he may apply upon notice to the court for an order, directing all the questions, arising upon those issues, to be distinctly and plainly stated for trial accordingly, and that thereupon the court must cause such issues to be distinctly and plainly stated. Section 968 does not help a defendant, in such a case to escape from the necessity of making his motion or application, because, besides the actions of ejectment, for dower, for waste, for a nuisance, and to recover a chattel, it covers only cases in which the complaint demands judgment for a sum of money.

The fact is that the different provisions of the Code of Civil Procedure, bearing upon the point under consideration, can be harmonized in no other way than by holding that the only remedy of a defendant in such a case is under section 970. This alone would be sufficient to call for the construction of section 974 hereinbefore contended for. But there are additional considerations of great weight. The character of an action, and the mode of trial of the issues of fact tendered by the complaint therein, are in every case determined by the complaint. The intent of section 974 is to enable a defendant to have his counter-claim considered in the disposition of plaintiff’s case, whether such case be of a legal or equitable nature. In other words, the defendant may, in all cases, have his counter-claim determined in connection with the claim made by the plaintiff as one of the issues in the case. But this involves that the defendant must proceed in such a way that the court can do it without unnecessarily delaying the plaintiff’s case upon the main issue. If the cause of action brought by a plaintiff into court is one which must be determined by the court without a jury, the counter-claim of the defendant, though it may be triable by jury at the option of the defendant, must be presented at the trial of the main issue in such a shape that due effect can be given to it at the close of plaintiff’s evidence. For these reasons it would be unjust to construe section 974 to mean that the defendant in such a case, after the joinder of issue upon the counter-claim, may sit still for months, until the case is reached for trial in its order upon the special term calendar, then try plaintiff’s side of the case, which is the main issue, and after all that, when defeated upon that, claim a jury trial upon his separate issue, and thus prevent a final judgment for many more months, if not years. But this is what the defendant’s contention upon the present appeal amounts to, especially in view of the fact that his answer contains an express admission of all the material allegations of plaintiff’s complaint.

From what has already been said, it sufficiently appears that defendant’s remedy to obtain a jury trial upon his counter-claim, was by special motion under section 970. Such motion, under Bule 81 of the General Buies of Practice, should have been made within ten days after joinder of issue. By failing to thus move for the framing of issues, and by giving notice of trial for the special term, the defendant waived his light to a jury trial under section 974. After it had been waived, and when the case was actually called for trial in its order upon the calendar, it was discretionary with the court to grant a postponement of the trial for the sole purpose of enabling the defendant to do what he might have done long before. The case discloses no reason why the exercise of that discretion should be disturbed. The defendant, by refusing to litigate his counter-claim and withdrawing from the case, preserved his right to enforce it in a separate and independent action.

The judgment appealed from should be affirmed, with costs.

Van* Vorst, J., concurred.  