Kress v. Schulman — 181 Misc. 997

Majority

p. 997

Isabelle Kress, Landlord, Respondent, v. Abraham Schulman, Doing Business as Gummed Tape and Devices Company, Tenant, Appellant.

Supreme Court, Appellate Term, Second Department,

May 12, 1944.

p. 998

Nathan Permut for appellant.

Harry Sand for respondent.

Memorandum

The clause of the lease waiving a jury trial applies only to actions or proceedings brought under the lease. (Cochanski v. Bankmer Real Estate Corporation, 33 N. Y. S. 2d 34 .) The petition discloses that the proceeding herein is not based upon a written lease. The waiver clause, therefore, is inoperative and the tenant has the right to a jury trial.

Order unanimously reversed upon the law, with ten dollars costs,and motion t» strike out tenant’s demand for a jury trial denied.

Concur: MacCrate, Smith and McCooby, JJ.