102 A.D. 585 | N.Y. App. Div. | 1905
The learned judge at Special Term correctly held that in an action such as this for partition, the plaintiffs were entitled to have the issues of fact tried by a jury unless they had lost or waived their right.
In passing it may be said that the rule deducible from the authorities is that the constitutional right to a jury trial may be waived, and where this occurs it cannot be retracted, but remains good during the life of the litigation. (Matter of Cooper, 93 N. Y. 507; Baird v. Mayor, 74 id. 385.) This rule, however, has no application to cases where, by the express language of the statute governing the action or proceeding, the waiver though once occurring is not conclusive upon the rights or remedies of the parties in subsequent stages of the action or proceeding; and statutes of the character referred to, and which render inapplicable the general rules relating to the waiver, are to be found, we think, in the two cases referred to in the memorandum of the learned judge at Special Term.
The case of Manheim v. Seitz (supra) involved a construction of
We think, however, that a clear distinction exists between the cases referred to by the learned judge at Special Term and this action, for the reason that we find, as applicable to actions in the .Supreme Court, no provisions in the Code of Civil Procedure conferring the right to a trial by jury on a second trial, where the right has once been waived.
Neither in the notice of motion nor in the order is there any provision limiting it to the first trial. It was a notice given and an order made in the action, and not having been appealed from it is conclusive upon the parties in the absence of any leave having been asked or given for a renewal of the motion. It was a motion made for a trial by a jury of the issues in the action, and was not, as suggested, a motion that a specific trial should be before a jury. Having been denied, the order denying it was a bar to moving subsequently for the same relief without first obtaining leave.
In Oppenheim v. Lewis (20 App. Div. 332) and cases which have followed that decision it was held by this court that “ An order not appealed from, and unreversed, is conclusive against the right of the moving party to the same relief on a second motion.”
We think this order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Yan Brunt, P. J., Ingraham, Hatch and Lahghlin* JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
The following is the memorandum of Scott, J., handed down at Special Term in the case of Tracy v. Kirchcr on the authority of which the present, case was decided at Special Term:
Scott, J.:
This is an action for partition and it is conceded that the plaintiffs are entitled as of right to demand that the issues of fact be tried by a jury, unless that right has been lost or waived. It was not waived by noticing the ’cause for trial at Special Term. Although the issues of fact are triable
Motion granted, with ten dollars costs to abide event.
Settle order on three days’ notice.