92 N.Y.S. 625 | 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 the Application of Cooper, 93 N. Y. 507; Baird v. The Mayor, 74 N. Y. 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. Manheim v. Seitz, 36 App. Div. 352, 55 N. Y. Supp. 321; Freifeld v. Sire (Sup.) 84 N. Y. Supp. 144. The case of Manheim v. Seitz, supra, involved a construction of section 3127 of the Code of Civil Procedure; and it was held that though the party failed to demand a jury trial at the time, of joining issue, as provided in that section, he could, upon a retrial of the action after an appeal, demand a trial by jury. Freifeld v. Sire was a case arising under sections 2247 and 3065 of the Code of Civil Procedure, which latter section provides that, “where a new trial is directed, like proceedings must be had in the action as upon the return of a summons personally served”; and the court properly held that, through a failure to demand a jury trial in dispossess proceedings .under these sections, a defendant did not waive his right to demand a jury trial upon a retrial pursuant to an order of the appellate court. 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 waivéd.
“On the pleadings in the above-entitled action, * * * we shall move the court at a Special Term * * * for the entry of an order directing that the issue herein be tried upon the pleadings by a jury.”
And in the order the recital is as follows:
“The plaintiffs’ motion for an order directing the issue in the above-entitled action to be tried upon the pleadings by a jury having come on to be heard, * * * and counsel for all the defendants having appeared in opposition to said motion, and the said plaintiffs, by * * * their counsel, consenting, * * * it is ordered that the plaintiffs’ said motion be, and the same is hereby, denied.”
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, 46 N. Y. Supp. 765, 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 a moving party to the same relief on a second motion.”
We think this order should therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.
