
    Carrie R. Hunter, Respondent, v. Grace S. Ramsay, Individually and as Administratrix of Malcom Ramsay, Deceased, Appellant.
    (Appeal No. 1.)
    Appeal by the defendant from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Dutchess on the 26th day of March, 1915, as amended by an order entered in said office on the 31st day of March, 1915.
   Per Curiam:

The case should be tried by a jury, provided the action is based upon a contract which entitles the plaintiff to recover one-half of the proceeds of sale of part of the land. In such ease, the allegations that the defendant caused the property tobe deeded to her by Malcom Ramsay by means of fraudulent representations and contrivances, introduces an immaterial and disturbing issue. If, however, the action is for the purpose of setting aside the conveyances to the defendant upon the ground that they were procured by the means stated, the trial should be by the court. If the plaintiff bases the action upon contract, the complaint should be made more definite and certain, as moved, except that it need not be stated when the proceeds of sale were received by defendant. The plaintiff may wish to amend her complaint and may do so. In that case the defendant may have the usual time to move or to plead. If the complaint shall not be amended the motion to strike out the allegations of fraud is granted as moved, as well as the motion to make the complaint more definite and certain as to the agreement, as above limited. Costs are not allowed to either party. Jenks, P. J., Carr, Rich and Putnam, JJ., concurred; Thomas, J., not voting. Order reversed, without costs, and motion granted, without costs.  