Hendricks v. Carpenter — 27 N.Y. Super. Ct. 665

Majority

p. 665

Uriah Hendricks et al. exr’s, &c. plaintiffs and respondents, vs. Josiah Carpenter, et al. defendants and appellants.

Headnote

1. A trial by jury is not waived by the mere failure of one of the parties to appear on the trial, under section 266 of the Code, subd. 1.

2. That section provides for a waiver-, which does not enforce a right, but implies a.voluntary relinquishment of one, and by all the parties, not by any one alone, unless the other seeks to avail himself of it. Neither party is bound to accept any apparent waiver by the other, by his failing to appear on the trial.

(Before Robertson, Ch. J., and Barbour and McCunn, JJ.)

Heard May 12, 1865;

decided December 30, 1865.

Appeal from an order made at a special term. (See 2 Bob. 625, S. 0.)

S. Sanxay, for the defendant Carpenter, appellant.

J. Pyne, for the plaintiffs, respondents.

By the Court,

The only point urged on this appeal is that a trial by jury is waived by the failure of either party to appear on the trial, by the 1st subdivison of section 266 of the Code, and therefore the assessment of the damages by a jury in this case, against the defendant Carpenter, was irregular. Unfortunately for this position, the language of that section is too clear for cavil. It provides for a waiver, which implies a voluntary relinquishment of a right, not the enforcement of one ; and' by the several parties, not by the act of any one, unless the other seeks to avail himself of it. The plaintiffs were not bound to accept the defendants’ waiver by his failing to appear. Indeed the exception is hardly capable of serious argument.

The order appealed from should be affirmed, with costs.