Opinion
March 21, 1940.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Order affirmed, with ten dollars costs and disbursements. Memorandum: In demanding both equitable and legal relief in his answer, the defendant Wallace has placed himself in the same position, so far as the right to a jury trial is concerned, as if he had demanded such relief on the same set of facts in a complaint. By his prayer for both types of remedies, he has waived his right to a jury trial on the issues raised by the answer and the reply. (Civ. Prac. Act, §§ 424, 425; DiMenna v. Cooper Evans Co., 220 N.Y. 391, 396.) All concur. (The order denies a motion by defendant Wallace for a jury trial of issues of fact in an action to foreclose a mortgage.)