Giberton v. Fleischel — 12 N.Y. Super. Ct. 652

Majority

p. 652

Giberton v. Fleischel.

Headnote

An action, at issue, upon issues of fact only, and noticed for trial and placed on the calendar, if the defendant fails to appear when it is reached in its order, must be tried by the court and jury, or by the court alone, if the plaintiff elects to treat the failure of the defendant to appear as a waiver by him of the right to a trial by a jury.

If, in such a case, the plaintiff has the defendant’s default entered for not appearing, and obtains an order that the damages be assessed by a sheriff’s jury, the assessment of damages will be set aside.

At Special Term,

February 2, 1856.

Before Bosworth, J.

This action brings at issue, and the issue brings issues of fact only. It was noticed to be tried before the court and a jury, and placed on the calendar; when it was reached in its order, the defendant did not appear. The plaintiff obtained an order, which recited the defendant’s failure to appear, and directed the plaintiff’s damages to be assessed by a jury before the sheriff. Such an assessment was made, and the defendant now moves that it be vacated, and the cause restored to its place on the calendar.

An issue of fact, in an action for the recovery of specific personal property, “ must be tried by a jury,” unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271 of the Code. (Code, section 253.) Such issues must be tried before a single Judge, (section 254.)

Fotice of trial must be given ten days before the term begins, (Id. section 256.) That having -been given, the party giving it may bring it to trial, when reached in its order on the calendar, (section 258.) If the notice of trial also expresses an intention to take an inquest, one may be taken at the opening of the court, on any day after the first day of the court. It must then be tried by a jury, before a Judge of the court, unless the plaintiff elects to treat the defendant’s non-appearance as a waiver of the right to a trial by jury, and in such case it must be tried before the court. Probably no authority can be found for ordering a cause, in which

p. 653

issues of fact are joined, to be tried by a sheriff’s jury. (2 R. S. 409, §§4, 5, 6, 7, 8; id. 419, §53.)

The assessment of damages by the sheriff’s jury must be vacated, and the cause restored to its place on the calendar.