Opinion
March 7, 1941.
Appeal from Supreme Court of New York County, COLLINS, J.
Sidney C. Seltzer of counsel [ Max Seltzer with him on the brief], for the appellant.
John B. Purcell of counsel [ Beardsley Taylor, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.
Plaintiff sues in equity. Defendant interposes a legal counterclaim and seeks a money judgment. In the circumstances plaintiff was entitled as a matter of right to a jury trial of the issues raised by the counterclaim and reply. (Civ. Prac. Act, § 424; Deeves v. Metropolitan, etc., Co., 6 Misc. 91; affd. on opinion below, 141 N.Y. 587; Di Menna v. Cooper Evans Co., 220 id. 391; Herb v. Metropolitan Hospital, 80 App. Div. 145.) The motion for such relief should have been granted.
It follows that the order should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.