Brown v. Brown

New York Supreme Court

Brown v. Brown

47 Misc. 2d 1046, 263 N.Y.S.2d 717, 1965 N.Y. Misc. LEXIS 1496

DecidedSeptember 22, 1965

StatusPublished

This text of 47 Misc. 2d 1046 (Brown v. Brown) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Brown, 47 Misc. 2d 1046, 263 N.Y.S.2d 717, 1965 N.Y. Misc. LEXIS 1496 (N.Y. Super. Ct. 1965).

Pincite

Opinion

Abraham N. Geller, J.

This motion for an order framing issues of adultery to be tried by a jury must be denied, as the provision for such a motion contained in section 429 of the Civil Practice Act was not continued in CPLR in order to provide an integrated procedure related to the note of issue in any ease where there is a right to jury trial of the action or any issue.

Under CPLR 4102 the procedure for obtaining a trial by jury of separate issues, such as adultery in a divorce action, granted as of right by the Constitution or by various statutes, is now incorporated in the general procedure in any action triable of right by a jury, merely by demand therefor contained in the note of issue or written demand served by an opposing party within 10 days, if no such demand is contained in the note of issue. Thus, in a divorce action, where there is a right to jury trial of the issue of adultery (Domestic Relations Law, § 173), the demand for a jury trial of that issue is obtained simply by providing therefor in the note of issue or in the opposing party’s written demand within 10 days. No longer are motions for framing issues to be made (except in an action not triable of right by a jury, when a motion for an advisory jury, addressed to the discretion of the court, is made within 20 days after note of issue is filed — see CPLR 4212). Where a jury trial is demanded in a divorce action, it is now the function of the Trial Judge to frame the issue of adultery for a special verdict by the jury (CPLR 4111),

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Abraham N. Geller, J.

This motion for an order framing issues of adultery to be tried by a jury must be denied, as the provision for such a motion contained in section 429 of the Civil Practice Act was not continued in CPLR in order to provide an integrated procedure related to the note of issue in any ease where there is a right to jury trial of the action or any issue.

Under CPLR 4102 the procedure for obtaining a trial by jury of separate issues, such as adultery in a divorce action, granted as of right by the Constitution or by various statutes, is now incorporated in the general procedure in any action triable of right by a jury, merely by demand therefor contained in the note of issue or written demand served by an opposing party within 10 days, if no such demand is contained in the note of issue. Thus, in a divorce action, where there is a right to jury trial of the issue of adultery (Domestic Relations Law, § 173), the demand for a jury trial of that issue is obtained simply by providing therefor in the note of issue or in the opposing party’s written demand within 10 days. No longer are motions for framing issues to be made (except in an action not triable of right by a jury, when a motion for an advisory jury, addressed to the discretion of the court, is made within 20 days after note of issue is filed — see CPLR 4212). Where a jury trial is demanded in a divorce action, it is now the function of the Trial Judge to frame the issue of adultery for a special verdict by the jury (CPLR 4111),

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Bluebook (online)

47 Misc. 2d 1046, 263 N.Y.S.2d 717, 1965 N.Y. Misc. LEXIS 1496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-nysupct-1965.

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