
    Zola E. Salsman, Plaintiff, v. Arthur Salsman, Defendant.
    Supreme Court, Special Term, Kings County,
    March 12, 1959.
    
      Laurence A. Kamine for plaintiff.
    
      Wegman, Epstein & Burke for defendant.
   Walter E. Hart, J.

In an action for legal separation brought by plaintiff wife, in which the first four of the five causes of action pleaded in the complaint charge respectively, cruel and inhuman treatment, failure to support, adultery, and abandonment, the defendant moves for an order directing a jury trial upon all of the issues raised by the pleadings.

Granting that the fifth cause of action set out in the complaint states a cause of action in ejectment, as contended by defendant, and that the first counterclaim, also asserted as a separate defense, contained in the defendant’s amended answer, seeks the determination of a claim to real property, both of which causes, upon joinder of issue, ordinarily would entitle defendant as a matter of statutory right to a jury trial upon the issues of fact raised thereby (Civ. Prac. Act, § 424, § 425 [as amd. by L. 1943, ch. 561], § 429), it is settled that defendant has no similar right to a jury trial of the issues raised by the causes of action for legal separation pleaded in plaintiff’s complaint. (Wise v. Wise, 159 App. Div. 575; Packard v. Packard, 88 App. Div. 339.) Since the defendant seeks a jury trial upon all the issues raised by the pleadings and expressly indicates in his supporting affidavit that he does not desire a jury trial solely as to the conflicting claims of the parties to the subject realty, the disposition of the instant motion depends upon whether the court should, in the exercise of its discretion, grant the relief prayed for as to the issues arising out of the causes of action for legal separation (Civ. Prac. Act, § 430). (See Gramling v. Gramling, 192 Misc. 285.)

Under the circumstances here present, the court is of the view that the motion should be denied. (See Riesenberger v. Sullivan, 1 A D 2d 1049.)

While the court does not hold it to be a factor determinative of the instant motion, it takes note of the uncontradicted assertion made in the opposing affidavit that defendant has failed to make due payments of alimony since December, 1957. It would appear that the defendant, in seeking to have the court exercise its discretion in his favor, would have sought to remedy such failure before making the instant application.

Motion denied. Submit order.  