#### Sam Wasserman and Ban Shecket, Appellants, *v.*Max Taubin and Rudolph Raskin, Respondents.

Second Department,

December 30, 1908.

Trial — equitable counterclaim, to legal action—practice.

Where a vendee of lands suing to recover earnest money paid asks judgment for a sum of money only without equitable relief, he may notice the cause for the Trial Term, and it should not be stricken from that calendar because the defendant pleaded an equitable counterclaim for specific performance.

*It seems,*that if such defendant wishes a trial of the equitable issues at the Special Term, the proper practice is to move for an order directing separate trials of the separate issues in the appropriate forum.

Gayitok, J., concurred, in separate opinion.

Appeal by the plaintiffs, Sam Wassevnian and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of October, 1908, as resettled by an order bearing *692date the 14th day of October, 1908, and entered in said clerk’s office, striking a cause from the calendar of a Trial Term of the Supreme Court and requiring the plaintiffs to accept the defendants’ notice of trial for a Special Term thereof.

*Samuel Schlesinger,*for the appellants.

*Louis B.*Boudin, for the respondents.

Miller, J.:

The action is brought to recover the amount of a, deposit and damages for the breach of an agreement to sell and convey real property. The complaint demands judgment for a sum of money only. The answer, among other things, pleads a counterclaim for the specific performance of said contract, to which the plaintiffs replied. The plaintiffs properly noticed the cause for the Trial Term and could not be deprived of their right to a jury trial by an order striking the cause from the calendar. (See Code Civ. Proc. § 968.) The motion was granted on the authority of *Thomas*v. *Bronx Realty Co.*(60 App. Div. 365). That case held that, pursuant to section 974 of the Code of Civil Procedure, the defendant was entitled to a trial of the issues arising upon the counterclaim and reply at the Special Term, not that the plaintiff ctuld be deprived of his right to a trial by jury of the issues arising upon the complaint and answer. Indeed, it was held in that case that the defendant was not entitled to stay the trial of the latter issues at a Trial Term pending the trial and determination of the former issues at Special Term, for the reason that he might, by the exercise of reasonable diligence, have the former issues trie’d at Special Term before the issues for the Trial Term could be reached for trial. Where the defendant has pleaded an equitable counterclaim, if he wishes a trial of the issues arising thereupon at Special Term, the proper practice is to move for an order directing separate trials in the appropriate forum of the separate issues, and the order thereof. *(Goss*v. *Goss & Co.,*126 App. Div. 748.) The court may then determine whether the issues should be tried separately.

The order should be reversed and motion denied.

Woodward, Jerks and Hooker, JJ., concurred; Gayror, J., concurred in separate opinion.

*693Gaynor, J. (concurring) :

Section 974 of the Code of Civil Procedure provides that where the defendant pleads a counterclaim, “ the mode of trial of an issue of fact arising thereupon, is the same as if it arose in an action ” brought for the cause of action alleged in the counterclaim. It says the *“*mode ” of trial, and not the place, or particular part or subdivision of the court, or court room, in which the trial is to be tried, as some have interpreted it from sheer lack of experience in the trial of causes and of familiarity with legal nomenclature and terminology. A counterclaim must tend to defeat or dimmish the plaintiff’s recovery; and an equity cause of action arising out of the same contract or transaction as that set out in a common law complaint may be pleaded thereto (Code Civ. Pro. § 501). The *“*mode ” of trial thereof is the same as if an action had been brought upon it, viz., it is tried before a Judge, who has to make and file a written decision, viz.; findings of fact and conclusions of law. There is nothing whatever in the way, in the Code or in actual practice, of that being done by the trial Judge who presides at the jury trial of the issues raised on the complaint, *i. e.,*by the denials in the answer, and at the same trial in which such jury issues are tried. The jury having rendered their verdict, the trial Judge would then make and file his decision on the counterclaim. If in the present case, for instance, the verdict should be for the plaintiff on the issues raised on the complaint, the trial Judge would also have to- decide for the plaintiff on the counterclaim, the issues of fact on the complaint and on the counterclaim being the same; unless he should set the verdict aside, in which case he would make and file a decision for the defendant on the counterclaim, and the judgment thereon would be *res a&jucLicata*of the cause of action alleged in the complaint if it should be brought on for trial again. In either case, all of the issues would be completely disposed of. This was all perfectly well understood until more recent years, and is still understood by lawyers of science and experience in the practice of the law, and I am not willing to give it up out of mere regard to any mistaken decision. In this case the plaintiff had the right to file a note of issue for the jury calendar of his cause of action, and the defendant had the right to file a note of issue for the equity calendar of his counterclaim. If the cause should be reached for trial on the jury *694calendar first, all of the issues could be then tried in the manner already stated, but if the issues on the equity calendar should be reached first, they could be tried in the equity part of court, and the ■judgment thereon would he *res adjudicates*of the issues on the jury calendar when they should be reached.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.