Majority
p. 140Mae c. Wood, Plaintiff, v. Thomas C. Platt, Defendant. (Supreme Court, New York Special Term, December, 1907.)
Headnote
Divorce — Trial — Trial of issues of fact by jury — As to what issues the right exists.Jury — Right to jury trial — Divorce.
Where the only issue in an action for divorce is the marriage of the parties, there is no authority for its submission to a jury.
This is a motion made for ant order framing issues and directing a trial thereof by a jury. The material facts are stated in the opinion.
Joseph Day Lee, for plaintiff and motion.
O’Brien, Boardman, Platt & Dunning (John B. Stanch-field, of counsel), opposed.
The only issue raised by the pleadings in this action is whether the “ plaintiff.was married to defendant on or about November 9, 1901, at the Fifth Avenue Hotel, in the city and county of New York.” There is no authority for the submission of this issue to a jury upon this motion, and the practice of submitting any issue other than that of adultery to a jury in an action of this character has been distinctly disapproved by the Appellate Division of this Department. Bush v. Bush, 103 App. Div. 588 ; Packard v. Packard, 88 id. 339; Wilcox v. Wilcox, 116 id. 423.
Motion denied.