
    ROSLYN HEIGHTS LAND & IMP. CO. v. BURROWES.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Trial by Jury—Motion to Frame Issues.
    Where defendant interposed a common-law counterclaim, he thereupon became entitled to trial by jury, and his motion to frame issues for trial by jury should be granted of course, unless plaintiff asks for a reference, and shows that the case is referable.
    Appeal from special term, Kings county.
    Action by the Roslyn Heights Land & Improvement Company against Robert Burrowes to foreclose a mortgage. From an order denying a motion that issues arising on defendant’s counterclaim and plaintiff’s reply be stated for trial and tried by a jury, defendant appeals. Reversed.
    Argued before DYKMAN, PRATT, and CULLEN, JJ.
    Roger M. Sherman, for appellant.
    J. E. Ludden, for respondent.
   CULLEN, J.

One of the defendant’s counterclaims was a common-law claim. This, under the Code, § 974, gave Jiim the light to a trial as at common law, if he made his application as prescribed by the Code, § 970. Mackellar v. Rogers, 109 N. Y. 468, 17 N. E. 350. This counterclaim was therefore triable by a jury, unless it involved a long account, in which case it was referable. To preserve his rights to a common-law trial, the defendant was compelled to move to frame issues. This he did, and, the plaintiff opposing the application, it was denied. The affidavit of plaintiff in opposition states that the defendant was not entitled to a jury trial, but that the action was referable. But, though the affidavit is long, it fails to state or show the only thing which would justify a reference; that is, that the action involved a long account. As the case stands now, the defendant’s application has been denied, but no order of reference has been made, and none may ever be made unless the plaintiff should apply for it. If the action is prosecuted, the cause will be brought for trial before the court at special term, and the defendant deprived of the mode of trial prescribed by law. We think that the defendant’s motion should have been granted as of course; that the plaintiff, if it believed the counterclaim to involve a long account, should either have resisted it by a counter applicatian for a reference, or by malting a similar application after the order framing issues,—an application to which the order framing issues would not be a bar. The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs, without prejudice to any application that plaintiff may make to refer the action. All concur.  