Opinion
May 16, 1949.
Order granting plaintiff-respondent's motion to cancel the appellant's demand for a jury trial and to place the cause on the nonjury calendar, reversed, with $10 costs and disbursements, and the motion denied, without costs. Appeal from the order denying appellant's motion to state issues for trial by jury dismissed, without costs. The complaint, as drawn, sets forth a cause of action to recover possession of plaintiff's undivided share in real property (Civ. Prac. Act, § 993), and the appellant is entitled to a jury trial as a matter of right. Johnston, Acting P.J., Adel, Wenzel and MacCrate, JJ., concur; Sneed, J., dissents and votes to affirm upon the ground that the gravamen of the complaint looks to a declaration of the rights of the parties under section 473 of the Civil Practice Act. [See post, p. 953.]