Moore v. Moore ( 1932 )

On the court’s own motion, the decision handed down on December 23, 1932, is hereby amended to read as follows: Order modified by granting to defendant leave to renew the motion for a jury trial on issues to be framed after the trial at Special Term of the issue of breach, abandonment and reeission of the agreement dated July 1, 1930, and as so modified the order is affirmed, without costs. The issues are clearly severable, and the one first to be tried is whether the agreement has been breached or abandoned so that the plaintiff is entitled to rescission. If that issue be determined in plaintiff’s favor, it would seem to dispose of the whole matter, and the counterclaims based on the agreement would naturally fall. If the determination is adverse to the plaintiff, the defendant should then have opportunity to ask for a jury trial on her counterclaims, if it then appears necessary that there should be any further trial. She did not waive the right of a jury trial by merely noticing the case for trial at Special Term. Lazansky, P. J., Kapper, Hagarty, Scudder and Davis, JJ., concur. [See ante, p. 852.]