| N.Y. App. Div. | Jun 15, 1930
Order denying defendants’ motion for permission to serve and file nunc pro tunc as of November 14, 1929, a written demand for a jury trial pursuant to subdivision 5 of section 426 of the Civil Practice Act, and to direct the calendar clerk to accept such demand on the payment of legal fees, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs. Subdivision 5 of section 426 of the Civil Practice Act is constitutional. The court, however, is not without power, in the exercise of a sound discretion, to relieve a party who has failed to serve the demand prescribed by that subdivision within the requisite period, where that failure is due to excusable mistake or inadvertence. The facts herein present an honest and excusable instance of mistake and inadvertent failure to serve the requisite notice and disclose that the act of omission occurred under circumstances negativing the idea that there was a willful or intentional waiver of the substantial constimtional right to a jury trial possessed by the defendants. The record also shows that relieving from this mistake does not prejudice the adverse party in any particular that would not hav e prejudiced him if the notice had been served within the required time. In so far as Craig v. City of New York (228 A.D. 275" date_filed="1930-02-14" court="N.Y. App. Div." case_name="Craig v. City of New York">228 App. Div. 275) is to the contrary, we do not feel impelled to follow it in view of the power of the court indicated as existing in Moot v. Moot (214 N.Y. 204" date_filed="1915-02-25" court="NY" case_name="Moot v. . Moot">214 N. Y. 204, 211) and of the provisions of section 105 of the Civil Practice Act. Young, Rich, Kapper, Hagarty and Carswell, JJ., concur.