19 N.Y.S. 906 | The Superior Court of the City of New York and Buffalo | 1892
The action is for divorce on the ground of adultery. Issue was joined May 6, 1892. The plaintiff now moves to settle the issues, that a trial by jury may be had. The motion came on for hearing this day, and the cause at the same time appeared on the equity calendar for trial. The plaintiff has a constitutional right of trial by jury, (Batzel v. Batzel, 42 N. Y. Super. Ct. 561,) which cannot be impaired by the rules of practice, (Conderman v. Conderman, 44 Hun, 181.) The effect of settling the issues is to postpone the trial for about one year. The plaintiff is entitled to this delay in the exercise of her constitutional right, but it should not unjustly prejudice the defendant, who is under an order to pay $12 a week alimony until the trial. The defendant is ready for trial now. The motion to settle the issues will be granted as of course, but the operation of the order for alimony will be suspended until the determination of the action. Hothing herein contained is to prevent the plaintiff from enforcing the payment of the counsel fee awarded, or any arrears of alimony till date, but she should not be permitted to avoid a trial now, and to compel the defendant to continue paying further alimony until the mode of trial she now elects to take can be had. The court must be just to the plaintiff, but equally fair to the defendant. Ad interim alimony is not matter of strict right, but of sound discretion in the court. 2 Bish. Mar. & Div. § 406. Settle order on notice.
