Opinion
September 26, 1951.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Wheeler, JJ.
Order affirmed, with $10 costs and disbursements. Memorandum: The defendants contend that the plaintiff's action is one at law and that they are entitled to a jury trial. Their motion was made upon the amended complaint and the amended answer. The amended answer is not in the record before us and the court, therefore, is not informed as to what allegations of the amended complaint are in issue. Some of the allegations of the amended complaint are so drawn as to leave in doubt the theory upon which the plaintiff will rely. The question before us, however, is not one relating to the sufficiency of the complaint nor whether the complaint should be made more definite and certain. As we read this complaint, the plaintiff is seeking a judgment for the rescission of some agreement between the parties, apparently either on the ground of misrepresentation or undue influence. There is no allegation that the defendants have failed or refused to perform the alleged agreement, whatever it may be, and the demand for relief is equitable in its nature. We think the order appealed from should be affirmed. All concur. (Appeal from an order denying defendants' motion to remove the case from the equity calendar and for a jury trial, and directing that the case remain on the equity calendar.)