Ramos v. Pascher

Tropp & Steinbock for Fannie Pascher, defendant. Philip Myer for plaintiffs. by jury waives the right to a jury trial even though the note of issue has never been filed. The waiver once effected cannot be retracted nor can an error be corrected by subsequently serving the demand * * * In the Second Judicial Department, on the other hand, it is held that under the language of present subdivision 5 (referring to Civ. Prac. Act, § 426, as it then read, see Report, p. 255), two omissions are needed to effect a jury waiver: (1) The service of a note of issue unaccompanied by a demand for a jury trial; and (2) the filing of a note of issue without a demand." (Eleventh Annual Report of N. Y. Judicial Council 1945, pp. 254, 255; words in parentheses ours.) And among the cases, applying the rule in the First Judicial Department, is listed the case of Renna v. Prudential Ins. Co. of Amer. (18 N. Y. S. 2d 124, supra). The Judicial Council Report (supra) continues at page 257, as follows: "4. Resolving conflict of authorities relating to power of court to grant relief from waiver. It is held in the Second Judicial Department that the court has discretionary power to relieve a party from a waiver of the right to trial by jury resulting from a failure to comply with the provisions of subdivision 5 of section 426." Accordingly, at pages 258 and 259 of that report, the council recommended an amendment to both section 426 of the Civil Practice Act and section 16-a of the New York City Court Act. These sections are each entitled "Trial by jury; how waived." The result was the enactment of chapter 264 of the Laws of 1945, which amended subdivision 5 of section 426 of the Civil Practice Act and section 16-a of the New York City Court Act. The last sentences of those sections, as amended, now read: "The court in its discretion may relieve a party from a failure to comply with the provisions of this subdivision if no undue delay or prejudice to the rights of another party would result." The effect of this amendment is pointed out in Prehle v. Graeme (186 Misc. 376, supra) at page 376. Accordingly, there being no showing of undue delay or prejudice to the defendant, the plaintiffs may be relieved of their inadvertence or excusable error. The motion to strike the case from the jury calendar is accordingly denied. Order signed.