Opinion
November 16, 1955.
Appeal from Columbia County Court.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
A recorded deed of real property names the plaintiff and individual defendant grantees. The defendant bank is a mortgagee. By the first cause of action alleged in the complaint, plaintiff seeks reformation of the deed by removing the individual defendant's name therefrom and in the second cause of action, he requests judgment, pursuant to article 15 of the Real Property Law, barring the individual defendant from any claim to the real property. The individual defendant, by counterclaim, seeks a judgment partitioning the real property. The reply denies that the individual defendant is a tenant in common. The action was tried before a court and a jury. The jury found a verdict in favor of the individual defendant on his counterclaim for partition and, by a special verdict, answered questions concerning reformation of the deed in a manner favorable to him. Plaintiff moved to set aside the verdict of the jury and to dismiss the individual defendant's counterclaim. Before the trial judge had rendered a decision on this motion, plaintiff, by order to show cause, moved to reopen the trial to permit him to introduce material evidence discovered after the jury had rendered the verdicts. Treating the verdicts of the jury as advisory, the trial court granted this motion and reopened the trial for the purpose of hearing the additional evidence without the aid of the jury. The individual defendant has appealed from the order reopening the trial claiming that he was entitled to a jury trial as a matter of right and that the trial judge was without power to reopen the trial after the jury had rendered the verdicts and had been discharged. In an action for reformation of a deed, no right to trial by jury exists. Such an action is equitable in nature and the jury's verdict is advisory only. ( McKenna v. Meehan, 248 N.Y. 206; Kutun v. Kranz, 274 App. Div. 365, affd. 299 N.Y. 615.) It has long been within the power of the trial judge to reopen an equity case to receive additional evidence before rendering decision. Section 549 of the Civil Practice Act now permits a judge who has tried an action without a jury to set aside his decision and take additional evidence. Under the circumstances here disclosed, we believe the trial judge properly reopened the trial. The equitable cause of action for reformation is the controlling factor in this case. If the deed be reformed by removing the individual defendant's name therefrom, no need would then exist for any adjudication pursuant to article 15 and the individual defendant would not be entitled to a judgment of partition. If reformation be denied, no judgment could be issued pursuant to article 15 barring the defendant from any claim to the real property and no issue of fact would exist in the counterclaim for partition. Order unanimously affirmed, with $10 costs.