87 N.Y.S. 707 | N.Y. App. Div. | 1904
This judgment must be reversed on account of the error of the Municipal Court in refusing the defendant a trial by jury when seasonably demanded by him.
. Section 231 of the New York Municipal Court Act (Laws of 1902, chap. 580) provides as follows : “ At any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue, a jury trial is waived. The party demanding a trial by jury shall forthwith pay to the clerk the sinn of four dollars and fifty cents. In default of which payment the court shall proceed as if no demand for trial by jury -had been made.” The defendant had complied with all the requirements of the section cited in order to entitle him to a trial by jury. He had offered to pay the prescribed fee and tendered the same, which was all that he could do in view of the refusal of the court to allow the clerk to receive it. Issue had not been joined in the action until the filing of the answer, which was filed at the precise time directed by the court when the default was opened. In behalf of the respondent it is argued that because in section 145 of the Municipal Court Act it is provided that issue in certain cases must be joined on the return day of the summons, except as otherwise expressly pre
The provisions of that section do not differ substantially from those of section 2990 of the Code of Civil Procedure in regard to jury trials in courts of justices of the peace. The language of that section is: “ At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived.” It has been held by the Appellate Division in the fourth department that there is nothing in the language last quoted that limits the right to demand a trial by jury to the joining of issue upon the return day of the summons, although the demand would usually he limited to the issue joined on such return day, if the defendant then pleaded. (Reese v. Baum, 83 App. Div. 550.) The defendant in the case at bar, however, did not plead on the first return day; he was relieved from the consequences of his default; and the order opening that default postponed the joinder of issue until the day when his answer was actually filed. By the action of the court below he has been deprived of a substantial right, which requires a reversal of the judgment.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.