The action is brought to recover the amount of a, deposit and damages for the breach of an agreement to sell and convey real property. The complaint demands judgment for a sum of money only. The answer, among other things, pleads a counterclaim for the specific performance of said contract, to which the plaintiffs replied. The plaintiffs properly noticed the cause for the Trial Term and could not be deprived of their right to a jury trial by an order striking the cause from the calendar. (See Code Civ. Proc. § 968.) The motion was granted on the authority of Thomas v. Bronx Realty Co. (60 App. Div. 365). That case held that, pursuant to section 974 of the Code of Civil Procedure, the defendant was entitled to a trial of the issues arising upon the counterclaim and reply at the Special Term, not that the plaintiff ctuld be deprived of his right to a trial by jury of the issues arising upon the complaint and answer. Indeed, it was held in that case that the defendant was not entitled to stay the trial of the latter issues at a Trial Term pending the trial and determination of the former issues at Special Term, for the reason that he might, by the exercise of reasonable diligence, have the former issues trie’d at Special Term before the issues for the Trial Term could be reached for trial. Where the defendant has pleaded an equitable counterclaim, if he wishes a trial of the issues arising thereupon at Special Term, the proper practice is to move for an order directing separate trials in the appropriate forum of the separate issues, and the order thereof. (Goss v. Goss & Co., 126 App. Div. 748.) The court may then determine whether the issues should be tried separately.
The order should be reversed and motion denied.
Woodward, Jerks and Hooker, JJ., concurred; Gayror, J., concurred in separate opinion.