Zeesell Realty Co. v. Cunningham

Levy, J.: An order was granted here opening the default of the defendant on condition that he furnish a surety company bond or cash as security for the judgment to be obtained, and on the further condition that the cause be tried by the court without a jury. The conclusion of the court below that defendant’s default was willful, deliberate and intentional is not borne out by the record, for it appears that although defendant demanded a jury Trial and that under the jury trial practice in The Bronx borough the clerk notifies the attorneys before the cause appears on the calendar, nó such notification was given by the clerk in this instance, and the default was taken upon the theory that the cause was a non-jury one. It is said in an affidavit in opposition to the motion to open the default below that plaintiff’s motion for summary judgment was denied by Mr. Justice Fitzgerald “ with the statement that this action be stricken from the jury calendar because the eighteenth paragraph of the lease entered into by the parties to the action plainly provided for a waiver of a jury trial in the event of any litigation between these parties.” What the form of [445] the so-called' “ statement ” of the justice was, whether by order or otherwise, does not appear. In the absence of an order of the court it certainly was not incumbent upon the defendant to pay serious attention to the “ statement,” nor was the clerk required to ignore defendant’s demand for a jury trial. Unless, therefore, defendant is concluded by his agreement in the lease to waive a jury trial in the event of litigation between the parties it was error to impose the conditions in the order appealed from, especially the condition that the cause be tried by the court without a jury. This court held in Melrose Avenue Real Estate Corp. v. Morner (affd., 206 App. Div. 689) that the defendant in that action had not, under a similar clause in his lease, waived the right to a jury trial, for the reason that such an anticipatory provision is not one of the methods expressly defined by statute by which a right to a trial by jury may be waived. (Moot v. Moot, 214 N. Y. 204, 211; and see O’Brien v. American Mirror Mfg. Corp., 165 N. Y. Supp. 448.) It follows that the order appealed from must be modified by striking out the conditions contained therein, including the condition that the cause be tried by the court without a jury, and as modified affirmed, with ten dollars costs to appellant. McGoldkick, J., concurs; Bijur, J., dissents in opinion.