Sexton v. Trust Co. of North America — 138 Misc. 345

Majority

p. 345

Donald S. Sexton, Plaintiff, v. Trust Company of North America, Defendant.

Supreme Court, New York County,

October 2, 1930.

p. 346

Aronstam, Grosser & Walker [Nathan Walker of counsel], for the plaintiff.

Cady, Schapiro & Schapiro [Arnold A. Jaffe of counsel], for the defendant.

Motion to strike cause from jury calendar. Plaintiff’s failure to file demand served with his original notice of trial within the statutory time constituted a waiver of such right. (Civ. Prac. Act, § 426, subd. 5; Craig v. City of New York, 228 App. Div. 275 ; Whitton Automotive Parts Co. v. Yale Electric Corporation, 136 Misc. 831 , Special Term, Kings county, Dike, J.) The statute requires not only that demand must be served, but that it must be filed. Failure to do either constitutes a waiver. Service and filing of the second notice of trial with demand did not operate to revive the right, and the clerk was without authority to place the case upon the jury calendar.

Motion is granted, with ten dollars costs.