Quick v. Bauer , 275 A.D.2d 852 ( 1949 )

The complaint, as drawn, sets forth a cause of action to recover possession of plaintiff’s undivided share in real property (Civ. Prae. Act, § 993), and the appellant is entitled to a jury trial as a matter of right. Johnston, Acting P. J., Adel, Wenzel and MacCrate, JJ., concur; Sneed, J., dissents and votes to affirm upon the ground that the gravamen of the complaint looks to a declaration of the rights of the parties under section 473 of the Civil Practice Act. [See post, p. 953.]