Fuchs v. Lipschitz

Appellate Division of the Supreme Court of New York

Fuchs v. Lipschitz

8 A.D.2d 805, 187 N.Y.S.2d 547, 1959 N.Y. App. Div. LEXIS 7863

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 23, 1959

StatusPublished

Cited by3 cases

This text of 8 A.D.2d 805 (Fuchs v. Lipschitz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fuchs v. Lipschitz, 8 A.D.2d 805, 187 N.Y.S.2d 547, 1959 N.Y. App. Div. LEXIS 7863 (N.Y. Ct. App. 1959).

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Opinion

Order so far as appealed from unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellant, and plaintiff’s cross motion to frame issues of fact to be tried by a jury is denied. By joining a cause of action to set aside and cancel a deed of record with one for partition [806]*806of real property, the plaintiff lost her statutory right to a jury trial in the action for partition. Under the circumstances, the application to frame issues and for a jury trial was necessarily addressed to the discretion of the court (Civ. Prac. Act, § 430). Such an application must he made within 20 days after joinder of issue (Rules Civ. Prac., rule 157). The cross motion was not, therefore, timely served and “ the right to apply for a trial by jury is waived.” Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Stevens, JJ.

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Order so far as appealed from unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellant, and plaintiff’s cross motion to frame issues of fact to be tried by a jury is denied. By joining a cause of action to set aside and cancel a deed of record with one for partition [806]*806of real property, the plaintiff lost her statutory right to a jury trial in the action for partition. Under the circumstances, the application to frame issues and for a jury trial was necessarily addressed to the discretion of the court (Civ. Prac. Act, § 430). Such an application must he made within 20 days after joinder of issue (Rules Civ. Prac., rule 157). The cross motion was not, therefore, timely served and “ the right to apply for a trial by jury is waived.” Concur — Breitel, J. P., Rabin, M. M. Frank, McNally and Stevens, JJ.

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Bluebook (online)

8 A.D.2d 805, 187 N.Y.S.2d 547, 1959 N.Y. App. Div. LEXIS 7863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuchs-v-lipschitz-nyappdiv-1959.

Opinion

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