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Stafford v. Lesser

121 N.Y.S. 224 Court N.Y. App. Term Decision date 1910-02-18 English

Delivered by *225 BIJUR, J.

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p. 224
STAFFORD v. LESSER.
(Supreme Court, Appellate Term.
February 18, 1910.)

Headnote

1. Jury (§ 26[1] )—Right to Jury Trial—Tender of Fee.
Where defendant tendered the jury fee when issue was joined and demanded a jury trial, and, when the case was called for trial after the jury fee had been exhausted by adjournments, tendered a new jury fee and again demanded a jury trial, it was reversible error to refuse it. "
[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 174, 175; Dec. Dig. § 26.[1] ]
2. Jury (§ 28[1] )—Rig;ht to Jury Trial—Waiver.
Where defendant was improperly refused a jury trial, his participation in the subsequent trial by the court did not waive his right to a trial by jury.
[Ed. Note.—For other cases, see Jury, Cent. Dig. § 185; Dec. Dig. § 28.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by S. S. Stafford against Henry Lesser. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Frederick O. Lacey, for appellant.
Hastings & Gleason, for respondent.

It appears sufficiently from the record that appellant paid the jury fee when issue was joined, and demanded a jury trial. When, by reason of adjournments, this jury fee had been “exhausted,” and the case came on for trial thereafter, appellant tendered a new jury fee, and again demanded a jury trial. Its refusal constitutes reversible error.

Participation in the subsequent trial was not a waiver of his right to a trial by jury. Stevenson v. Brooks, 62 Misc. Rep. 489 , 115 N. Y. Supp. 118 .

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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