I dissent. There was no possible way in which - -the defendants could have compelled a jury.trial. They could not.put the case upon the calendar of the jury Trial Term, because it did not come within *569the definition of those cases which were triable by jury. The case of Thomas v. Schumacher (17 App. Div. 441) is no authority for the proposition for which it is cited. That action was tried without objection or suggestion that it was not a case for equitable consideration.
Judgment reversed, new trial granted, costs to appellant to abide event.