Supreme Court Appellate Division

Supreme Court Appellate Division

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1910 edition. Excerpt: ... subsequently asked for a jury trial of the legal issues. The opinion of the court, by Danforth, ./., said (p. 472): "The subsequent step taken by the defendant in noticing the issues so joined for trial, at a court of which a jury forms no part, was inconsistent with any intent to take advantage of the right to a jury trial. That right could be waived, and by this notice the defendant must be held to have consented to a trial before the court and without a jury. Neither the Code nor the cases cited by the appellant are opposed to this view. The Code ( 1009), specifies certain modes by which trial by jury may be waived, but the provision is not exclusive, all the same effect may be given co any evidence, either of conduct or acquiescence, by a party, which in other cases would require a conclusion that a right designed for his benefit had been waived.' "Each party noticed the case for trial before a court for which no jury could be drawn, and the notice which carried the cause there must be deemed an unequivocal election by both parties to have the case so tried." The Mackellar case also indicated the proper application for a jury trial in a case on the Special Term Calendar to be under Section 970, where the applying party is not the one who waived his right by placing the case there, or under Section 971, where, as here, the moving party has waived his right, and so can have a jury trial only in the discretion of the Court. Assuming for the moment that a separate cause of action, as such, may have a separate and solitary position on a Trial Term Calendar, it is clear that plaintiff here cannot be heard to demand that the first cause of action be remanded to Trial Term for a jury trial, he having definitely elected...show more

Product details

  • Paperback | 214 pages
  • 189 x 246 x 11mm | 390g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236837800
  • 9781236837806