MATTER OF SHINDER

S. SAMUEL DI FALCO, S.

Petitioner in this proceeding under section 231-a of the Surrogate's Court Act to have his compensation for legal services fixed moves to strike out respondents' demand for a jury trial. Respondents, who are the executrix and sole legatees under the will, filed an answer in which, among other matters, a counterclaim requesting money damages based upon fraud and deceit was pleaded. They contend that they have a right to a jury trial on the basis of that counterclaim. Their contention is overruled.

There is no constitutional right to a jury trial in a proceeding under section 231-a of the Surrogate's Court Act which is a proceeding of an equitable nature. ( Matter of Richards, 5 A.D.2d 124, 125; Matter of Davis, 10 Misc.2d 347.) A counterclaim in an equity suit did not give rise to a right to a jury trial at common law. ( Matter of Blair, 242 App. Div. 689.) The motion is accordingly granted.

Submit order on notice.