§ 4101.Issues triable by a jury revealed before trial

Article 41. Trial by a Jury · Last amended 1963 · Last verified July 21, 2026

In one sentenceSection 4101 lists which civil actions in New York carry a right to a jury trial -- those demanding money damages only, named claims like ejectment and nuisance, and any action where the constitution or a statute grants that right -- while equitable defenses and counterclaims go to the judge.

Full Text of CPLR 4101

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In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317, except that equitable defenses and equitable counterclaims shall be tried by the court:

1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only; 2. an action of ejectment; for dower; for waste; for abatement of and damages for a nuisance; to recover a chattel; or for determination of a claim to real property under article fifteen of the real property actions and proceedings law; and 3. any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury.

Plain-English Summary

Section 4101 answers a question that comes up before almost every civil case gets underway: does this dispute go to a jury or to a judge alone? The section names three categories that carry a jury-trial right. The first covers any action where a party sets out facts that would support a judgment for money and nothing else, the ordinary breach-of-contract or personal-injury suit. The second lists specific kinds of claims by name: ejectment, dower, waste, actions to abate a nuisance and collect damages for it, actions to recover a chattel, and claims to real property brought under Article 15 of the Real Property Actions and Proceedings Law. The third category catches everything else the first two miss, any action where the state constitution or another statute grants a jury-trial right, even if this section never spells it out.

The opening clause carves out one exception that cuts across all three categories: equitable defenses and equitable counterclaims go to the judge, not the jury, no matter what claim they attach to. New York spent decades sorting out which side of a lawsuit, the claim or the defense, controlled whether a jury heard an issue rooted in equity. This section settles that question by routing every equitable defense and counterclaim to the court, while the legal claims in the same case still go to the jury.

The section also defers to section 4317, which lets a court order a reference in certain account-based disputes instead of a jury trial. That exception reaches back to a reference procedure that predates New York's first constitutional guarantee of jury trial, which is why sending an accounting dispute to a referee does not violate anyone's right to a jury.

Frequently Asked Questions

Do I have a right to a jury trial in a New York civil case?

You do if your case seeks a money judgment only, falls into a specific category like ejectment, dower, waste, nuisance, or recovery of a chattel, or is an action where the constitution or another statute grants a jury-trial right.

Can I get a jury trial for a breach of contract claim in New York?

Yes, an action where a party sets out facts entitling them to a money judgment only, which covers most contract claims, carries a jury-trial right under section 4101.

Does a jury decide my equitable defense in New York?

No, section 4101 sends equitable defenses and equitable counterclaims to the judge, even in a case where the main claim is tried to a jury.

Is there a jury trial for a nuisance lawsuit in New York?

Only for the claim to abate the nuisance and recover damages for it; a request to enjoin a nuisance is heard by the court alone.

What if my type of case isn't listed by name in section 4101?

The section's third category covers it: any action where the New York constitution or another statute grants a jury-trial right qualifies, even without a specific mention here.

Can a court send my case to a referee instead of a jury?

Yes, in the limited circumstances section 4317 allows, chiefly certain accounting disputes, a court can direct a reference in place of a jury trial.

Does filing a claim to real property guarantee me a jury?

It does if the claim is brought under Article 15 of the Real Property Actions and Proceedings Law, one of the categories section 4101 names outright.

Advisory Committee Notes

(See also Advisory Committee Notes preceding this section, under subheading “Right to jury trial.”). This section is derived from CPA § 425. Although the section is not required because the constitutional right to jury trial exists apart from any statute (NY Const art I, § 2; McGurty v Delaware, L. & W. R.R. 172 App Div 46, 158 NY Supp 285 (4th Dept 1916)) and various statutes include a specific reference to the right to jury trial, it is retained as a convenient guide for lawyers and judges. The provision that equitable defenses and counterclaims are triable by the court is new. Wisconsin has a similar statute. Wis Stat Ann § 270.07 (1957). It is designed to end the troublesome distinction formerly made under New York statute and case law between equitable counterclaims, which must have been tried by the court, and equitable defenses, which must have been submitted to the jury along with the other issues of fact in the action. See CPA § 424. The distinction is not a clear one. The new provision would provide clarity and consistency and ensure trial by the court of issues like mistake and fraud, traditionally regarded as appropriate for determination without a jury. In this connection it should be noted that a large majority of code jurisdictions, which have no statute similar to CPA § 424, have held that equitable defenses in legal actions are triable to the court. Clark, Code Pleading 103-06 (2d ed 1947).

The new provision raises no constitutional question because trial by jury is not required for equitable issues. Moreover, there is no constitutional right to a trial by jury of a counterclaim. See MacKeller v Rogers, 109 NY 468, 17 NE 350 (1888); Manhattan Life Ins. Co. v Hammerstein Opera Co. 184 App Div 440, 171 NY Supp 678 (1st Dept 1918).

The exception of actions in which a reference is directed under CPLR § 4317 from the requirement of jury trial derives from the statutory reference procedure which predated the first constitutional provision preserving the right to trial by jury; there is therefore no constitutional right to jury trial in a certain type of action involving an account where a reference is directed. For further discussion of this question, see notes to § 4317.

Subparagraph 1 of CPA § 425 read, “[a]n action in which the complaint demands judgment for a sum of money only.” Under former principles of pleading, it was not the demand for relief but the facts set forth or proved which controlled. Wainwright & Page, Inc. v Burr & McAuley, Inc. 272 NY 130, 5 NE2d 64 (1936); Bruff v Rochester Trust & Safe Deposit Co. 118 Misc 394, 193 NY Supp 321 (Sup Ct 1922); CPA § 111; see § 3017; cf. proposed rule CPLR § 4103 (covering case where facts entitling plaintiff to legal relief not alleged but proved at the trial). The phrase in subparagraph 1, “and sets forth facts which would permit” a judgment for a sum of money, reflects former practice.

The category of action “for a nuisance” specified in subparagraph 2 of § 425 has been changed to an action “for abatement of and damages for a nuisance.” This accords with case law, under which there is no right to jury trial of an action to enjoin a nuisance.

Hudson v Caryl, 44 N.Y. 553, 44 N.Y. (N.Y.S.) 553, 1871 N.Y. LEXIS 74 (N.Y. 1871); Cogswell v New York, N. H. & H. R. Co., 105 N.Y. 319, 11 N.E. 518, 105 N.Y. (N.Y.S.) 319, 7 N.Y. St. 203, 1887 N.Y. LEXIS 725 (N.Y. 1887); Johnson v Delano, 3 Misc. 2d 38, 150 N.Y.S.2d 529, 1956 N.Y. Misc. LEXIS 2100 (N.Y. Sup. Ct. 1956).

This section adds a new subparagraph 3 to call attention to the many types of action not specified in the other subparagraphs where a party is entitled by statute or Constitution to a trial by jury. For example, the right to jury trial is constitutionally protected in actions for divorce, annulment on a ground other than incapacity of one of the parties, partition, and actions by the Attorney-General to annul a corporation or to vacate letters patent. All of these are actions in which the right to jury trial became statutory between 1777 and 1894; they were absorbed into the 1894 Constitution. See Mayers, The Constitutional Guarantee of Jury Trial in New York, 7 Brooklyn L Rev 180 (1937). In other actions not specified in subparagraphs 1 and 2, such as the trial of contempt of an injunction order in a labor dispute, the right to jury trial is guaranteed by statute but not by the Constitution. See, e.g., CPA § 882-a; Judiciary Law § 753-a(1).

Amendment History

Add, L 1962, ch 308, eff Sept 1, 1963.

Source & verification. Provision text, History, and Advisory Committee Notes are reproduced verbatim from the Consolidated Laws of New York. Last verified July 21, 2026. · Official source

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