McCarty v. Edwards
New York Supreme Court
This was an action in equity, tried at the Albany September circuit, 1860, before his honor Justice Gould. The decision was in favor of the defendant, upon which judgment was entered for the amount of his costs and disbursements. Prom this judgment the plaintiff appeals to the general term. The action was commenced by service of summons and complaint on the 2lth of July, 1858. The plaintiff was an engineer, engaged in running a locomotive on the New York Central Railroad.
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This was an action in equity, tried at the Albany September circuit, 1860, before his honor Justice Gould. The decision was in favor of the defendant, upon which judgment was entered for the amount of his costs and disbursements. Prom this judgment the plaintiff appeals to the general term. The action was commenced by service of summons and complaint on the 2lth of July, 1858. The plaintiff was an engineer, engaged in running a locomotive on the New York Central Railroad. The defendant was an attorney-at-law, residing and practicing his profession, first at Clinton, and afterwards at…
1Opinion of the Court
By the court, Hogeboom, Justice.
The plaintiff made several propositions and objections on the trial of the cause, which were overruled. It will be convenient to consider them in their order :
1. Plaintiff asked that the issues of fact be tried by a jury. He was not entitled to this as a matter of right, (Code, §§253, 254.) It was, therefore, a matter of discretion, and not reviewable. The discretion has not been abated. The action seeks equitable relief, and such are to be tried by the court. (Cheesebrough agt. Houck, 5 Duer, 125; Wilson agt. Forsyth, 16 How., 448; Moffatt agt. Van Doren, 4…
2Cases cited5 opinions
- Creery v. HollyNew York Supreme Court · 1835
- Egleston v. KnickerbackerNew York Supreme Court · 1849
- Niles v. CulverNew York Supreme Court · 1850
- Wolfe v. J. Myers & Co.The Superior Court of New York City · 1849
- Cheseborough v. HouseThe Superior Court of New York City · 1855
3Cited by1 opinion
- In re the Estate of DohertyNew York Surrogate's Court · 1935