Noto v. Headley

¶1In an action pursuant to article 15 of the Real Property Law (now Real Property Actions and Proceedings Law, art. 15) for determination of a claim *687to certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County, dated February 14, 1964, which, upon reargument: (1) denied his motion to transfer the action from the Equity Calendar to the Jury Calendar; and (2) granted defendants’ cross motion to vacate plaintiff’s demand for a jury trial. Order affirmed, with $10 costs and disbursements. An action to determine title to real property is triable by a jury (CPLR 4101, suibd. 2). However, in his amended complaint the plaintiff included allegations setting forth, in addition, an equitable cause of action for specific performance, which is maintainable under the omnibus prayer for relief. By so doing, plaintiff has waived his right to a jury trial (Di Menna v. Cooper & Evans Co., 220 N. Y. 391; Vincent v. Cooperman, 283 App. Div. 812). Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur. [39 Misc 2d 233.]