149 N.Y.S. 302 | N.Y. Sup. Ct. | 1914
This is an action for divorce. The summons and complaint were served December 4,1913. The answer, joining issue on the charge of adultery, was served January 5,1914. On the 10th day of January, 1914, defendant noticed a motion to change the place of trial, which motion was heard January nineteenth, and denied on the third day of February. On the ninth day of February an order to show cause why a bill of particulars should not be furnished by the plaintiff was served and an order for a bill of particulars made February twenty-third. Upon appeal this order was modified and affirmed May 14,1914; the bill of particulars was furnished May nineteenth. The plaintiff now applies to the court for an order directing that the questions arising upon the issue of adultery be distinctly and plainly stated for trial by a jury.
The plaintiff has not waived his right to a trial by
Under the authorities cited in Halgren v. Halgren and in the dissenting opinion in Cohen v. Cohen, it seems to me this declared waiver is in conflict with the Code, if section 1009 covers the trial of the issue of adultery. Section 1008 refers to “an action triable by a jury.” It plainly does not apply to equity actions generally, in which issues of fact are triable by jury only under direction of the court. It provides that, if the parties waive a trial by jury, the issue of fact is to be tried by the court; “ (1) But such an action, other
There is also a further serious question. Every limitation put upon the enjoyment of a right-assured by the Constitution must preserve to the party holding the right a reasonable opportunity to assert it. 25 Cyc. 986, 987; People v. Turner, 117 N. Y. 227, 233; Williams v. Village of Port Chester, 72 App. Div. 506, 515. Does this rule 31 give a reasonable time? Or, is it so manifestly inadequate as to amount to a denial of the right? Twenty days, beginning immediately after issue joined, is a narrow limit. I suspect that but few lawyers (and those much experienced in divorce actions) realize the existence of this rule as applicable to divorce cases. The Code does not suggest a time limit for the motion; and, if one looked at section 1009, which provides how a party may waive his right “ to a trial of an issue of fact by a jury,” he would naturally conclude that any time before trial he could make his motion under section 1757. Thus, while following language in the Constitution and Code, which, in its ordinary meaning, covers his case, and while his attention is absorbed in other timely motions, his client would be deprived of his constitutional right by this short limitation. This rule requires the motion for a jury trial to be made within the time the complaint or the answer may be amended as of course.
I realize that this rule was made by a convention of judges, under the authority of the Judiciary Law, and that it is binding upon this court, but it may well be that the convention did not have in mind all of the circumstances that might arise to embarrass a party liable to be deprived by this rule of his constitutional right; and the court, which has authority to determine the reasonableness of a limitation enacted by the legislature, is called upon to determine the reasonableness of this rule.
The motion is granted and an order accordingly will issue.
Motion granted.