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Teeter v. Daniel

148 N.Y.S. 670 Court N.Y. App. Div. Decision date 1914-07-10 Docket No. 5793 English

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p. 670
TEETER v. DANIEL.
(No. 5793.)
(Supreme Court, Appellate Division, First Department.
July 10, 1914.)

Headnote

Jury (§ 25[1] )—Right to Trial by Jury—Waiver of Right.
Under rule 31 of the General Rules of Practice, providing that a jury is waived unless the party entitled thereto give notice of motion within 20 days after issues are joined, a motion for a jury in an equity case, made in the year 1914, where the case was at issue in 1907, was properly denied.
[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 154-173; Dec. Dig. § 25.*]
Appeal from Special Term-, New York County.
Action by Sydney M. Teeter against Anna K. Daniel. From an order denying his motion to frame issues for trial before a jury, defendant appeals.
Affirmed.
See, also, 147 N. Y. Supp. 1145 .
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
Anna K. Daniel, of New York City, pro se.
Isaac Heller, of New York City, for respondent.

This action was brought to restrain the defendant from bringing actions and filing lis pendenses to vacate a final judgment of foreclosure and sale which had been executed by a sale of the premises. The action seems to have been at issue by the service of an answer which was verified on the 29th of June, 1907. When the action came on for trial at the Special Term, the defendant, on the 20th of February, 1914, obtained an order to show cause why issues should not be framed for trial before a jury. That motion was denied on the 3d day of March, 1914, by the order appealed from, which denied the motion without prejudice to an application before the Special Term of the Supreme Court where the action had been called for trial.

By rule 31 of the General Rules of Practice it is provided:

“In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court if either party desires such a trial, the party must within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such -motion is not made within such time, the right to a trial by jury is waived.”

This motion did not comply with this provision of the rule. The action was an action in equity to which neither party was entitled as a matter of right to a trial by jury, and it therefore is clear that the court below was justified in denying the motion.

The order appealed from must therefore be affirmed, without costs.