Garth Estates v. Bronx Parkway Commission

This complaint is not one brought under the Code provision (§ 1638 et seq.) for determination of a claim to real property. Averring mistake and asking to reform the referee’s deed, with its charge that through its negotiation to insure its title defendant received notice of plaintiff’s title; also the relief sought to perpetuate testimony, with the remedy by injunction against defendant’s entry or commission of waste on the land — all clearly state a case for equitable relief. Hence defendant’s *7claim, of adverse title did not take the trial to a jury term. The provision (Code Civ. Proc. § 1642) that after defendant claims an estate “ the subsequent proceedings, including the trial, judgment and execution, are the same as if it was an action of ejectment,” does not apply to this suit, which does not depend on the Code, but has its sanction in the general jurisdiction of a court of equity.

The order denying defendant’s motion to strike the cause from the Special Term calendar is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ., concurred.

Order denying defendant’s motion to strike the cause from the Special Term calendar affirmed, with ten dollars costs and disbursements.