Summary
In Edward Joy Co., the plaintiff filed the pleadings mixed in equity and law and demanded a trial by jury in which the third department rejected, stating the plaintiff's causes of action joining law and equity arising out of the same transaction, waived their right to a trial by jury.
Summary of this case from McPherson Builders, Inc. v. Performance Premises, LLCOpinion
November 30, 1995
Appeal from the Supreme Court, Tompkins County (Relihan, Jr., J.).
Plaintiff originally commenced this lawsuit in Onondaga County, joining three causes of action for breach of contract against defendant McGuire Bennett, Inc., a general contractor, with a cause of action against all defendants seeking foreclosure of plaintiff's mechanic's lien filed in connection with work performed by plaintiff on property owned by defendant Ithaca College. Following a motion by defendants for a change of venue, it was ultimately determined by the Fourth Department that the proper venue for the action is Tompkins County, the location of the real property against which plaintiff filed the mechanic's lien ( 199 A.D.2d 1015). Upon plaintiff's filing of a note of issue containing a jury demand, defendants moved to vacate the note of issue on the ground of, inter alia, their assertion that plaintiff is not entitled to a jury trial on its claims. Supreme Court granted defendants' motion to the extent of striking the jury demand from plaintiff's note of issue. Plaintiff now appeals.
There must be an affirmance. Supreme Court correctly held that by joining legal and equitable causes of action arising out of the same transaction, plaintiff waived its right to a trial by jury ( see, Di Menna v Cooper Evans Co., 220 N.Y. 391, 396; Mirasola v Gilman, 104 A.D.2d 932; Cowper Co. v Buffalo Hotel Dev. Venture, 99 A.D.2d 19, 21; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4102:6, at 212). We have examined the various arguments advanced by plaintiff urging us to reach a different result and find them to be unpersuasive.
Crew III, Yesawich Jr., Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.