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ISABELLE KRESS, Landlord, Respondent, v. ABRAHAM SCHULMAN, Doing Business as GUMMED TAPE AND DEVICES COMPANY, Tenant, Appellant.

MEMORANDUM

Per Curiam.

The clause of the lease waiving a jury trial applies only to actions or proceedings brought under the lease. ( Cochanski v. Bankmer Real Estate Corporation, 33 N.Y.S.2d 34.) The petition discloses that the proceeding herein is not based upon a written lease. The waiver clause, therefore, is inoperative and the tenant has the right to a jury trial.

Order unanimously reversed upon the law, with ten dollars costs, and motion to strike out tenant's demand for a jury trial denied.

Concur: MacCRATE, SMITH and McCOOEY, JJ.

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KRESS v. SCHULMAN
(May 12, 1944)