Fuchs v. Lipschitz

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

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 of 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.