
    Manhattan Life Insurance Company, Plaintiff, v. Hammerstein Opera Company et al., Defendants.
    (Supreme Court, New York Special Term,
    December, 1917.)
    Trial — in foreclosure action — pleading — actions.
    Motions and orders — when motion to frame issues denied — default — General Rules of Practice, rule 31.
    Though the answer in a foreclosure action pleads counterclaims which if defendant had brought actions thereon would have been triable as matter of right by a jury, it is not entitled to such a trial in the foreclosure action.
    Where defendant’s motion to frame for a jury trial the issues raised by its counterclaim and the reply thereto was not made within twenty days after the joinder of issue, as required by rule 31 of the General Rules of Practice, and sufficient reason is not shown for overlooking the default, the motion will be denied in the discretion of the court.
    
      Motion to frame for a jury trial the issues raised by the defendant Hammerstein Opera Company’s counterclaim and the reply thereto by the plaintiff.
    Seabury, Massey & Lowe, for defendant and motion.
    Kelly & Hewitt, for plaintiff, opposed.
   Giegerich, J.

The defendant Hammerstein Opera Company moves for an order to frame for a jury trial the issues raised by its counterclaim and reply thereto by the plaintiff. . The action is brought to foreclose a mortgage, and some of the material allegations of the complaint are denied, and in addition the answer contains counterclaims which would have been triable as a matter of right by a jury, if brought as actions by the said defendant against the plaintiff. But this fact does not, as of right, entitle the defendant so counterclaiming to have a jury trial of the issues of his counterclaim. Mackellar v. Rogers, 109 N. Y. 468; Ettlinger v. Sailors’ Snug Harbor, 122 App. Div. 681. The facts in Mackellar v. Rogers, supra, were very close in their resemblance to the facts in the present case. That action, like this, was to foreclose a mortgage, and there, as here, a counterclaim was set up demanding a money judgment. In that case the money judgment was for money due and also for damages for breach of contract. In this case the money judgment demanded in one of the counterclaims is for damages for the plaintiff’s false representations in selling certain real estate to the counterclaiming defendant. In both cases the counterclaims are of such character that the defendants would have been entitled, as a matter of right, to jury trials if they had sought to enforce their claims as plaintiffs instead of as defendants. I am therefore unable to distinguish the Mackellar case from the present ease upon the facts. In that case the court .said on the defendant’s application at Special Term for the framing of issues, that: “ To grant or refuse such request was clearly a matter of discretion,” and further on the court (at p. 471) said: “ The appellant’s contention rests upon section nine hundred and seventy-four (§ 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 depends exist in favor of the defendant, but that right is. not absolute or unqualified; it is relative and limited, and, in the words of the heading of section 974, within ’ certain ‘ foregoing sections ’ only is 1 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.” This being a case, therefore, where the moving party is not entitled as of right to the jury trial sought, but a case where the granting or refusing of the application for the framing of issues is a matter of discretion with the court, and the defendant having failed to make its application within twenty days after issue joined, as required by rule.31 of the General Buies of Practice, and having also failed to show any sufficient reason for overlooking its default under that rule, the motion must be denied, with ten dollars costs.

Motion denied, with costs.  