This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury trial has been waived in the context of civil actions seeking both legal and equitable relief arising out of the same transaction. Part IV of this article addresses the evolution toward non-jury trial in England and Wales and the policy in favor of non-jury trials in civil actions today.

This article is written to encourage New York advocates to examine closely the analyses developed and the results which have emerged concerning waiver of a jury trial by the joinder of law and equity claims. Trial by jury, so fundamental to the American and New York systems of jurisprudence, should not be deemed waived, and is not waived, merely because litigants seek both legal and equitable relief arising from the same transaction. There is a careful analysis meant to be employed to protect the sacred right to a trial by jury, and an advocate confronted with the issue should make certain that the court properly utilizes it.