Day v. Day — 106 N.Y.S. 843

Majority

p. 843

DAY v. DAY.

(Supreme Court, Appellate Division, Second. Department.

November 22, 1907.)

Headnote

Divobce—Framing Issues for Jubt.

Under the direct provisions of Code Civ. Proc. § 1757, subd. 1, in an action for divorce, defendant’s motion for an order framing issues to be tried by a jury was improperly denied.

" [Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 484-486.]

Appeal from Special Term.

Action for divorce by Harry D. Day against Nancy J. Day. From an order denying defendant’s motion for an order framing issues to be tried by a jury, defendant appeals. Reversed, and motion granted.

Argued before WOODWARD, JENKS, HOOKER, RICH, and MIDLER, JJ.

Samuel P. Goldman, for appellant.

Wm. C. Boecher, for respondent.

This is an appeal from an order denying defendant’s motion for an order framing issues to be tried by a jury in an action brought for a divorce on the ground of adultery. The defendant has answered, denying the allegation of adultery, and was entitled to the order. Section 757, subd. 1, Code Civ. Proc.

The order of the Special Term must therefore be reversed, and the motion granted.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur.