The Garth Estates, Respondent, v. Bronx Parkway Commission, Appellant

The Garth Estates, Respondent, v. Bronx Parkway Commission, Appellant. Second Department, March 16, 1917. Practice — suit in equity to reform deed, etc. — claim of adverse title by defendant — when no right to jury trial. A complaint which seeks the reformation of a referee’s deed upon the ground of mistake, with allegations that the defendant had notice of the plaintiff’s title to lands, and which also seeks to perpetuate testimony and asks an injunction against the defendant’s entry or commission of waste on lands, states a cause in equity, and hence the defendant’s claim of adverse title does not entitle it to a jury trial. As such suit is not one to determine a claim to real property under the provisions of the Code of Civil Procedure, but has its sanction in the general jurisdiction of the court of equity, section 1642 of the Code, making the procedure the same as in an action of ejectment where the defendant claims an estate, has no application. Appeal by the defendant, Bronx Parkway Commission, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th. day of February, 1917, denying defendant’s motion to strike this case from the Special Term calendar and for a jury trial. Moses Ely [Theodosius F. Stevens with him on the brief], for the appellant. Frederick M. Czaki [Joseph S. Wood and Marion Erwin with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: 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 claim, 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.