Haff v. Haff

Giegerich, J. In this action for a separation-the defendant has counterclaimed for a divorce, and in her reply the plaintiff denies the allegations of adultery set up in the counterclaim and also pleads as a defense the commission of numerous acts of adultery on the part of the defendant. Issue was joined on April 16, 1909, and the cause was noticed by both parties for trial at the May Special Term. On May 22, 1909, the defendant moved for a preference on the calendar, and the plaintiff, conceding that the .preference was a matter of right, asked that the cause be set for trial on June twenty-first. The motion for a preference was granted, and the cause was placed upon the preferred calendar of the Special Term for June fourteenth. On the morning of that day the papers upon the present motion were served upon the attorneys for the defendant. By this motion an order is sought framing the issues raised by the counterclaim and the reply for trial by a jury. The defendant urges that, under the provisions of section 970 of the Code of Civil Procedure and rule 31 of the General Buies of Practice, the motion should have been made within ten days after issue was joined; but the requirement does not apply to a cause of action for a divorce. Wilcox v. Wilcox, 116 App. Div. 423; Conderman v. Conderman, 44 Hun, 181. The defendant also claims that, by noticing the cause for trial at Special Term and asking that it be set for trial upon a day [124] certain, the plaintiff has waived her right, if any she had, to a jury trial. Blut it is well settled that noticing the cause for the Special Term does not amount to a waiver, since the cause remains before the Special Term, although certain issues are sent to a jury (Wilcox v. Wilcox, supra; Tietzel v. Tietzel, 122 App. Div. 873); and I do not see that the plaintiff, by failing to oppose the preference to which the defendant was entitled and asking that the appearance of the cause upon the calendar be deferred until June twenty-first, has waived anything to which she would otherwise be entitled. The defendant further urges that the action is for a separation, and that there is no provision of law giving a right to trial by jury in such an action. But the issues sought to be framed here are those raised by the counterclaim for a divorce and the reply thereto. It is unnecessary to decide whether, under the provisions of sections 974 and 1757 of the Code, the plaintiff was entitled as a matter of right to a jury trial of those issues. Mackellar v. Rogers, 109 N. Y. 468; Bennett v. Edison Electric Ill. Co., 164 id. 131; Herb v. Metropolitan Hospital, 80 App. Div. 145. If she was so entitled, I hold that she has not waived her right to that mode of trial and is still entitled to assert it. If she is not so entitled as a matter of right, it is, nevertheless, within the discretion of the court to order such a trial (Code Civ. Pro. § 971; Ettlinger v. Trustees, 122 App. Div. 681, 687); and I am of the opinion that such an order should be made in this case. The precise form of the issues to be submitted to the jury will be determined on the settlement of the order. Motion granted as indicated, without costs. Motion granted, without costs.