I am unable, for the following reasons, to concur in the opinion of Mr. Justice Laughlin. The defendant purchased from the plaintiff certain real estate in the city of New York and gave a mortgage upon the same to secure a portion of the purchase money. This action was brought to foreclose that mortgage. The answer did not deny any of the allegations of the complaint, but set up a counterclaim— which was put in issue by a reply -—for damages alleged to have been sustained by reason of a breach of a covenant against incumbrances contained in the deed of conveyance.
The action is an equitable one and, therefore, triable by the court without a jury. In the prevailing opinion it is said that the interposition of the counterclaim entitled the defendant, as a matter of right, to a trial by jury, of the issues raised by the counterclaim, and this notwithstanding the fact that no order had been obtained in advance of the trial directing that such questions be stated for trial. This contention is based upon the provisions of section 97J of the Code of Civil Procedure which provides that “ where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment.” This section did not, in my opinion, give either party the absolute right to have the action tried by a jury. The section must be con*158strued in connection with section 970, and when thus construed, it will be found that the latter section is applicable. It provides that “ where a party is entitled by the Constitution or by express provision of law to a trial by a jury (the parties here were entitled by express provision of law to a trial by jury of the issues arising upon the counterclaim) of one or more issues of fact in an action not specified in section nine hundred and sixty-eight of this act, he may apply, upon notice, to the court for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.” To entitle either party, therefore, to a trial by jury of the questions arising upon the counterclaim, he was bound to apply to the court for an order directing that the questions be stated for trial and thereupon he would have become entitled, as a matter of right, to have the application granted. These provisions of the Code clearly contemplate, as it seems to me, that where a party in an equitable action is entitled to have certain questions raised tried by a jury, he must have such questions framed in advance of the trial, and this, I understand, was precisely what was held in Mackellar v. Rogers (109 N. Y. 468) where the same question was presented as here. That action was brought to foreclose a mortgage, and the defendant, as here, did not deny any of the material allegations of the complaint, but set up a counterclaim—which was put in issue by a reply — for damages growing out of a breach of a contract for which an affirmative judgment was demanded. The case was noticed for trial at Special Term, and when moved for trial, before any evidence was given, the defendant demanded a trial by jury of the issues embraced in the counterclaim. The motion was denied upon the ground that the proper mode of applying for a jury trial of such issues was by a motion to have the same framed and sent to a jury in advance of the trial. An exception was taken to the ruling, the validity of which was the question presented upon the appeal, and it was there as sharply presented as here. The defendant had not denied any of the allegations of the complaint, and the plaintiff, unless the matters set forth in the counterclaim were established, was entitled to a judgment of foreclosure. I do not see, therefore, how it can be said that in the disposition made by the Court of Appeals this question was not involved, or what was said by that court is a mere dictum. It was the only question *159presented at the Special Term and the ruling denying defendant’s motion for a trial by jury was put upon the ground that his right to such a trial depended upon a special motion under section 970 of the Code, and that such motion under rule 31 of the General Rules of Practice had to be made within ten days after joinder of issue, and that by failing to thus move for the framing of issues, and by the notice of trial for the Special Term, the right to a trial by jury, under section 974 of the Code, had been waived. That the Court of Appeals did, in fact, pass upon this question is apparent from the language of the opinion delivered by Judge Daotobth, in which all except one of the other members of the court concurred. He said : “We have only to inquire whether the defendant was, under the circumstances, entitled to a jury trial as a matter of right. The appellant’s contention rests upon section nine hundred and seventy-four (§ 974) of the Code of Civil Procedure which provides, * * * . The conditions upon which the right depend exist in favor of the defendant, but that right is not absolute or unqualified; it is relative and limited, and in the words of the heading of section 974 ‘ within ’ certain ‘ foregoing sections ’ only is ‘ a counterclaim to be deemed an action.’ * * * If tolerated it would enable a person sued to postpone and delay the plaintiff in the prosecution of a just cause until at a convenient time, and before another tribunal, he had presented a cause of action subsequently brought into court, and the determination of which has no necessary connection with the plaintiff’s demand in suit. * * * It is to be conceded that the mode of trial of the issue tendered by his counterclaim might be the same as if it had arisen in an action. But a counterclaim in an equity suit is not a case where a right to a jury trial existed at common law. * * * It is not secured by the Constitution. It is not to be had as of course for the action is not within section 970 of the Code (supra) the complaint demanding judgment other than for a sum of money. It is conferred by statute (§ 974) and so is within section 970 (supra) which requires an application upon notice to the court for an order directing the questions arising upon the issues to be stated for trial.”
The Mackellar case was followed by Bennett v. Edison Electric Illuminating Co. (164 N. Y. 131), and by this court, unanimously, in Arnot v. Nevins (44 App. Div. 61).
*160This being so, I can see no good purpose in considering the other decisions referred to in the prevailing opinion, inasmuch as the rule seems to have been definitely settled not only by this court but by the court of last resort, and if it had not, the orderly dispatch of business at Trial and Special Terms requires that this practice should prevail instead of that contended for in the prevailing opinion. Where an issue is raised in an equitable action, which the party may have tried by a jury if he so desires, all that is necessary to do is to apply to the court in advance of the trial that issues be framed for trial and sent to a jury, and if he does not do this, he ought to be held to have waived such right. He certainly ought not to be permitted to wait until the case is called for trial at Special Term, and then delay the trial by asking that certain matters be sent to a jury.
Nor do I think that the order denying the motion for the settlement of the issues can be reviewed on this appeal — the appeal from the judgment. If it can, it is solely by reason of the provisions of section 1316 of the Code of Civil Procedure. This section provides that an appeal taken from a final judgment brings up for review an interlocutory judgment or an intermediate order specified in the notice of appeal, and which necessaril/y affects thejmal judgment. The order here sought to be reviewed does not, in my opinion, affect the judgment. The trial took place in a forum recognized by law, was conducted according to statutory provisions relating to such trials, and the judgment was entered upon a decision regularly made, at the conclusion of such trial. While the order undoubtedly affected a substantial right, and if erroneous would be corrected on appeal taken directly from it, it in no way involved the merits of, or affected the judgment. (Roslyn Heights Land Co. v. Burrowes, 22 App. Div. 540.) The defendant, by omitting to appeal from the order, recognized its validity and is bound by it. He could not go to trial and, after judgment had been rendered adversely to his contention, overthrow it by successfully attacking an order theretofore made in the action, and in which he had previously acquiesced. Not only this, but the trial court was bound to recognize the validity of the order so long as it remained unreversed. It seems absurd, therefore, to hold that, notwithstanding these facts, the trial court must proceed with the trial and render a judgment, *161the validity of which can be attacked by reason of a previous order in the case, which he was bound to recognize.
I think the order appealed from should be affirmed.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, and order denying defendant’s motion to settle issues and direct a jury trial reversed and motion granted with ten dollars costs.