Roslyn Heights Land & Improvement Co. v. Burrowes
New York Supreme Court
Appeal from special term, Kings county. Action by the Roslyn Heights Land & Improvement Company against Robert Burrowes to foreclose a mortgage. From an order denying a motion that issues arising on defendant’s counterclaim and plaintiff’s reply be stated for trial and tried by a jury, defendant appeals. Reversed.
1Opinion of the CourtCullen, J.
One of the defendant’s counterclaims was a common-law claim. This, under the Code, § 974, gave Jiim the light to a trial as at common law, if he made his application as prescribed by the Code, § 970. Mackellar v. Rogers, 109 N. Y. 468, 17 N. E. 350. This counterclaim was therefore triable by a jury, unless it involved a long account, in which case it was referable. To preserve his rights to a common-law trial, the defendant was compelled to move to frame issues. This he did, and, the plaintiff opposing the application, it was denied. The affidavit of plaintiff in opposition states that the…
2Cases cited1 opinion
- MacKellar v. . RogersNew York Court of Appeals · 1888
3Cited by5 opinions
- Herb v. Metropolitan Hospital & DispensaryAppellate Division of the Supreme Court of the State of New York · 1903
- Roslyn Heights Land & Improvement Co. v. BurrowesAppellate Division of the Supreme Court of the State of New York · 1897
- Maag v. Maag Gear Co.Appellate Division of the Supreme Court of the State of New York · 1920
- Herb v. Metropolitan Hospital & DispensaryAppellate Division of the Supreme Court of the State of New York · 1903
- Roslyn Heights Land & Improvement Co. v. BurrowesAppellate Division of the Supreme Court of the State of New York · 1897