Opinion
December 17, 1945.
Plaintiffs sue to foreclose a vendor's lien on personal property sold and delivered to defendants. Defendants' answer, in addition to a general denial, contains a counterclaim alleging breach of warranty in the sale of the merchandise and praying for a money judgment of $500, paid on account of the purchase price. Defendants seasonably filed a demand for a jury trial of the issues raised by the counterclaim and moved for an order staying the trial of plaintiffs' action pending the jury trial. The motion was denied and defendants appeal. Order reversed on the law, with $10 costs and disbursements, and motion granted, without costs. Defendants are entitled to a jury trial as matter of right. ( City Bank Farmers Trust Co. v. Hartshorne, 264 App. Div. 287, and cases cited.) Hagarty, Acting P.J., Carswell, Johnston, Adel and Lewis, JJ., concur.