Hayes v. Kerr

This is an appeal from an order made at the equity term denying plaintiffs’ motion to strike the cause from the calendar of the equity term and remand it to the jury calendar. The complaint demands judgment that'certain deeds be declared fraudulent and void as against the plaintiffs; that one of the defendants be adjudged liable to surrender possession; that all others claiming under Mm be forever barred from all claim; that the premises be adjudged to be *165subject to the interests of the plaintiffs; that the premises be partitioned according to the respective rights of the parties, etc., etc. The action is, therefore, for equitable relief, and such relief cannot be granted at a jury term. Watson v. Manhattan Railway Co., 53 N. Y. Super. Ct. 137. If there are some issues involved in the action as to which the plaintiffs may claim a trial by jury either as matter of right or in the discretion of the court, the jilaintiffs must take the appropriate steps to have them settled and stated for trial accordingly. See Mackellar v. Rogers, 52 N. Y. Super. Ct. 468; 109 N. Y. 468.

The order must be affirmed, with ten dollars costs and disbursements.

Gtldersleeve, J., concurs.

Order affirmed.