#### J. Stewart Ross, Respondent, *v.*James McCaldin, Appellant.

Second Department,

December 5, 1907.

Trial — waiver of jury—complaint not dismissed because cause on equity calendar.

Unless a jury trial is claimed before evidence is received, the right is waived.

A complaint that, states a cause of action, legal or equitable, cannot be dismissed on its face because placed on the .wrong calendar.

Appeal by' the defendant, James McCaldin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the. 26th day of February, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, vacating and rescinding a certain paper executed by plaintiff" to defendant.

*James Troy [Thomas H. Troy*with him on the brief], for the appellant.

*J. Stewart Ross,*respondent, in person.

Gaynor, J.:

There was no question made at the trial but that the complaint stated a cause of-action. It was only claimed by .-the defendant’s *14counsel when the case was reached for trial that the complaint did not state an equitable but a common law cause of action, which seems to be the case. Why he called attention' to this is not apparent, for he expressly said the court could not dismiss the complaint for that reason ; which was entirely correct, for a complaint that states any cause of action, legal or equitable, cannot be dismissed on its face, or because the cause is on the wrong calendar. - If it cotild not be dismissed it certainly had to be tried, and' the only question therefore was whether it should be tried by a ¡judge alone or with a jury. Unless a party claim his right to a jury trial before any evidence is received he waives it (Code Civ. Proc. sec. 1009; *McKeon*v. *See,*51 N. Y. 300) and that.is the ease of the defendant here; for the defendant did not claim the right to a jury trial. Inasmuch as a jury trial was waived, it does not matter what was the kind of action pleaded and proved. It could not be dismissed at the close for being a- common law action. The plaintiff had the right to recover on it whether it was in equity *or*at common law. It therefore does not matter whether it was the one or the other.

. The judgment should be affirmed,'

Jenks, Hooker and Miller, J.J., concurred ; Rich, J., concurred in separate opinion. ■ •

Rich, J. (concurring):

The sole question is whether the Special Term erred in trying the action as one in equity, and is presented by the defendant’s exception to the refusal to dismiss the complaint upon the ground that it did not allege or the evidence, establish an equitable cause of action ; that both the pleading and proofs disclosed that the plaintiff had an adequate remedy at law.

It was toó late to raise this question at the trial. Such objection was not taken by the answer; on the contrary, the defendant; after alleging the'facts regarded most favorable to himself, demanded affirmative equitable. relief, and thus brought himself within the rule declared in *Crisfield*v. *Murdock*(127 N. Y. 315) and *Gage*v. *Lippman*(12 Misc. Rep. 93), in the former of which Judge Parker said: “ On the trial'the point was made that the plaintiff ought •not to maintain this suit because he had an adequate remedy at law,, and it is' again urged on this appeal. In the answers of the several *15defendants no such objection was made. On the contrary each defendant, after setting forth the facts deemed the most favorable to his position, demanded equitable.relief. The parties having thus submitted to the jurisdiction of-the court, it was too late to take the objection on the trial that the plaintiff had a remedy at law. * * * Whether the objection, if seasonably taken, could have been made available need not, therefore, be considered;” In the *Gage*case Mr: Justice Bischoff, writing for the court, says: “As to the contention that the plaintiffs had an adequate remedy at law, viewed apart from the effect of the findings made, it is only, to be said that the defendants not only failed to plead this defense, which was essential *(Ostrander*v. *Weber,*114 N. Y. 102; *Town of Mentz*v. *Cook,*108 id. 507), but actually submitted the case .to the equity side of the court for determination,- they themselves praying for affirmative equitable relief in the form of a decree against the plaintiffs for specific performance.”

In the case at bar the defendant demanded a decree adjudicating that the promissory notes alleged in the complaint were obtained by forcé and duress, and consequently void.' The judgment must be affirmed, with costs.

Judgment affirmed, with costs.