Island Improvements, Inc. v. May

231 A.D. 837 | N.Y. App. Div. | 1930

Motion for peremptory mandamus order directing the trial justice to render a decision and sign a judgment granted. The right to a jury trial having been waived, the action was properly tried by the court. (Civ. Prac. Act, §§ 426, 428.) The court, having tried the case, must decide it and make a decision and judgment, and the court’s action in setting aside the so-called decision and directing that the issues be tried before the court with a jury was not a proper exercise of discretion. (Smith v. Geiger, 202 N. Y. 306, 312; O’Brien v. Bowes, 4 Bosw. 657.) The form of relief is by the way of mandamus. (Norwegian Lutheran Trinity Church v. Krelsovitch, 147 App. Div. 108.) Present — Lazansky, P. J., Young, Kapper, Carswell and Scudder, JJ.