158 N.Y. 466 | NY | 1899
When this case was here upon a former appeal by the defendant corporation (
After examining the voluminous record in this case and the exhaustive and interesting briefs of counsel, we are of the opinion that the findings of the court, sustained by the evidence, justified it in awarding the judgment appealed from, and that no new or further discussion of the question of the defendants' liability or the plaintiff's right to maintain the action is necessary at this time. Therefore, the only question we deem it essential to discusss is one relating to procedure or the mode of trial.
On the trial, after the appellants had moved to dismiss the complaint and the motion had been denied, one of the counsel for the defendants said: "We would make a formal *469
demand for a trial by jury." That motion was denied, and the defendants excepted. They now challenge the correctness of the ruling, and insist that it requires a reversal of the judgment. It is quite obvious that at the time the motion was made the court would not have been justified in granting the defendants' application. Indeed, the manner and the language employed would naturally induce a court to conclude that the motion was not with an idea that it would be granted at that stage of the trial. It seems to have been made only as a matter of form, and not as a matter of substance, or as the assertion of a substantial right. At that time no proof had been given, and the only means the court had of determining the question as to the mode of trial was by reference to the pleadings. The mode of trial was to be determined by the cause of action set up in the complaint. (Untermyer v. Beinhauer,
The judgment and order should be affirmed, with costs.
All concur.
Judgment and order affirmed.