The learned counsel for the plaintiff insists that the complaint sets forth an action for money had and received and that the issues are triable by a jury.
A carefully drawn complaint, covering nine printed pages, sets forth in substance that plaintiff's testator, within five months of his death, purchased an annuity of the defendant when he had long been addicted to habits of gross intemperance, which led to a diseased, disordered, irrational and unsound mental condition, of which defendant had due notice.
That plaintiff's testator paid $100,000 for an annuity of *Page 301 $7,640.00 during life, payable in quarterly payments of $1,910; that one quarterly payment was paid and before another became due the testator died.
There are other allegations in the complaint that need not be referred to at this time.
The prayer of the complaint is, in substance:
1. That the contract of annuity be adjudged void and that the same be canceled and set aside.
2. That the defendant be adjudged to pay to the plaintiffs the sum of $100,000.00, with interest, less any sum, with interest, that defendant has paid out under the contract.
3. Prayer for costs.
This is an action in equity praying for relief that only a court of chancery can grant.
The learned Appellate Division has certified to us this question:
"Are the plaintiffs in this action, upon the pleadings herein, entitled as a matter of right to a trial by jury, under the provisions of section 968 of the Code of Civil Procedure?"
The question is answered in the negative.
The order appealed from should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, MARTIN, VANN and WERNER, JJ., concur; CULLEN, J., not sitting.
Order affirmed.