145 N.Y.S. 652 | N.Y. App. Div. | 1914
Lead Opinion
I agree with my brother Clarke that the right to a trial by jury of an issue of adultery in an action for divorce is expressly provided for by law, and that either party to this action had an absolute right to a trial of that issue by a jury. The way in which such a trial is to be had and the time within which the application for such trial is to be made is, however, to be established by law, and it seems to me entirely clear that the Legislature had the power to provide the method by which a party demanding such a jury trial should proceed in the enforcement of his right.
Section 1757 of the Code of Civil Procedure provides that “ If the answer puts in issue the allegation of adultery, the court must, upon the application of either party, or it may, of its own motion, make an order directing the trial, by a jury, of that issue; for which purpose the questions to be tried must
The sole question, therefore, is whether rule 31, as amended in 1910, providing that when a motion is made under section 970 of the Code of Civil Procedure it must be made within twenty days after the case is at issue, is inconsistent with the Judiciary Law and the Code of Civil Procedure, and it seems to me clear that it is not. As before stated, there is no provision of the Code regulating the time within which a motion to frame issues must be made. It is quite clear that a party would not have a right to notice an action for divorce for trial before a jury without obtaining such an order. The fact that he is required to make a motion and have the issues stated did not in any way impair his right to have the issues of adultery tried by a jury; and, if that is so, certainly a provision requiring him to make such a motion within a time specified does not at all impair his right to a trial by a jury; and as the convention
I think, therefore, that the rule was proper, that the motion was properly denied, and the order appealed from should be affirmed, with ten dollars costs and disbursements.
Scott and Hotchkiss, JJ., concurred; Clarke and Dowling, JJ., dissented.
Dissenting Opinion
The complaint alleged adultery upon two specified occasions with a person named, and with another person named, “and other male persons, at divers times during the months of July and August, 1913, at divers places in the Borough of Brooklyn.” Issue was joined by the service of the answer' on October 14, 1913. Under date of November twenty-fourth plaintiff served a bill of particulars, under which he limited his charge to the adultery alleged to have been committed with the first named .corespondent on the 18th and 22d days of September, 1913.
By order to show cause granted two days thereafter, on November twenty-sixth, defendant moved for an order directing that the issues and questions of fact as stated be submitted to a jury for trial. This motion was denied upon the ground that the defendant had waived her right to a trial by a jury under .rule 31 of the General Buies of Practice. Said rule provides as follows: “In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court, if either party desires such a trial, the' party must within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such motion is not made within such time, the right to a trial by jury is waived.”
Section 970 provides that “ Where a party is entitled by the Constitution, or by express provision of law, to a trial by a jury, of one or more issues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply, upon notice, to the court for an order, directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application the court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated. The subsequent proceedings are the same as where questions arising upon the issues are stated for trial by a jury in a case where neither party can, as of right, require such a trial; except that the finding of the jury upon such questions so stated, is conclusive in the action unless the verdict is set aside, or a new trial is granted.”
Section 1009 of the Code of Civil Procedure provides that “A party may .waive -his right to the trial of the issue of fact, by a jury, in any of the following modes: 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury; or, if the adverse party so moves it, by failing to claim a trial by a jury, before the production of any evidence upon the trial.”
The question presented is whether a party in an action for divorce can be deprived of the right to a jury trial of the issue of adultery, preserved by the Constitution and provided for by statute, by failing to move for such trial within twenty days after issue joined under rule 31 of the General Buies of Practice.
It was settled in Wynehamer v. People (13 N. Y. 378) that although the provisions of section 2 of article 1 of the Constitu
It is settled law that the right to a jury trial of the issue of adultery in divorce actions is within the protection of the Constitution.
In Batzel v. Batzel (42 N. Y. Super. Ct. 561) the G-eneral Term of the Superior Court, by Freedman, J., said: “ In the State of New York jurisdiction over actions for the dissolution or suspension of the marriage contract was, by statute, conferred upon the Court of Chancery, and the act conferring the jurisdiction provided, that if the adultery charged be denied, the court should direct a feigned issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country at some Circuit Court. (1R. L. 197.)
In Morrell v. Morrell (17 Hun, 324) the G-eneral Term of the Supreme Court, First Department, said: “ The right of trial by jury upon issues relative to the legality of the marriage was secured, therefore, and this right was preserved by the Constitution (art. 1, § 2, Constitution of 1846) although it might be waived in the manner to be prescribed by law. (Id.) This latter provision gave the Legislature the power to declare in what way the right to trial by jury might be waived, and this power
In Conderman v. Conderman (44 Hun, 181) plaintiff on notice moved for an order directing the issues of adultery to be tried by a jury and that they be framed. The motion was denied on the ground that the application was not made within ten days after the issue was perfected. Bradley, J. (Smith, P. J., Haight and Lewis,-JJ., concurring), said: “The trial by jury of the issues of fact upon the question of the alleged adultery is a matter of right preserved by the Constitution. * * * The trial by jury of the question of adultery, when put in issue in an action for divorce, has been used ever since the power was given to the courts of this State to grant relief in such cases. This power was first transferred from the Legislature to the Court of Chancery by Laws of 1787 (chap. 69). In 1813 there was a further enactment on the subject. (2 R. L. 197.)
But after the foregoing cases were decided, the convention of justices assigned to the Appellate Division held in 1910 amended rule 31 so as to read as quoted supra, and it is claimed that as it in terms applies to “all actions” where a party is entitled
It seems to me that the same course' of reasoning which took this class of cases out of the purview of the old rule 31 is applicable to the new rule. The power to make the General Rules of Practice was conferred by section 17 of the Code of Civil Procedure, now section 94 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35). “ The convention of justices assigned to the Appellate Division, must establish rules of practice not inconsistent with this chapter or the Code of Civil Procedure, which shall be binding upon all the courts in this State and all the judges and justices thereof, except the Court for the Trial of Impeachments and the Court of Appeals. The rules thus established are styled ‘ the General Rules of Practice.’ ”
By express terms said rules were not to be inconsistent with the Code of Civil Procedure. “The rules of practice authorized are such as are not inconsistent with the statute. (Code Civil Pro. § 17.) And they cannot have the effect to modify it or to provide a practice not in harmony with it. (Rice v. Ehele, 55 N. Y. 518; Glenney v. Stedwell, 64 id. 120; French v. Powers, 80 id. 146.) ” (Conderman v. Conderman, supra.) The power to make rules was not extended so as to permit laws framed by the law-making power to be altered or repealed and certainly not to affect or destroy constitutional rights.
Take the case at bar, within two days after the defendant knew what she had to meet by the service of the bill of particulars she made her motion. She has been denied her statutory and constitutional right to have a jury pass upon her guilt or innocence because she did not within twenty days after the formal joinder of issue — many of said issues now formally withdrawn by the plaintiff — make her motion.
“ The same constitutional provision which protects the right of a trial by jury, provides further, that it may in civil suits be waived by the parties in the manner .to be prescribed by law. The only manner which has been prescribed by law is expressed
“ The failure to appeal from an order transferring the cause from one calendar to another was not a waiver of his constitutional right to trial by jury. The Code provides for the manner in which the right to trial by jury may be waived (Code Civ. Proc. § 1009).” (Allen v. Gray, 201 N. Y. 504.)
The Constitution provides: “But a jury trial maybe waived by the parties in all civil cases in the manner to he prescribed by law.” (Art. 1, § 2.)
As there is no time limitation in the law providing for a jury trial in a divorce case, or in the law providing for the framing of issues in such case, and as it is provided that upon application the court must make the order, and as the law provides how a jury trial may be waived, I conclude that the rule limiting the time in which the motion must be made, and providing that if not so made trial by jury is waived so far as cases of the character of that at bar is concerned, is inconsistent with the Code of Civil Procedure, unwarrantably deprives a litigant of a constitutional right, and hence is not binding.
The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.
Dowling, J., concurred.
Order affirmed, with ten dollars costs and disbursements.
2R. L. 197; R. L. of 1813, chap. 103.— [Rep.
2R. S. 145, § 40.—[Rbp.
R. L. of 1813, chap. 102.—[Rep.
Code Proc. § 266; now Code Civ. Proc. § 1009.— [Rep.