Giberton v. Fleischel

5 Duer 652

• Court: The Superior Court of New York City
• Decided: February 2, 1856
• Status: Published

Opinion

Bosworth, J.

An issue of fact, in an action for the recovery of specific personal property, “ must be tried by a jury,” unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271 of the Code. (Code, section 253.) Such issues must be tried before a single Judge, (section 254.)

Fotice of trial must be given ten days before the term begins, (Id. section 256.) That having -been given, the party giving it may bring it to trial, when reached in its order on the calendar, (section 258.) If the notice of trial also expresses an intention to take an inquest, one may be taken at the opening of the court, on any day after the first day of the court. It must then be tried by a jury, before a Judge of the court, unless the plaintiff elects to treat the defendant’s non-appearance as a waiver of the right to a trial by jury, and in such case it must be tried before the court. Probably no authority can be found for ordering a cause, in which issues of fact are joined, to be tried by a sheriff’s jury. (2 R. S. 409, §§4, 5, 6, 7, 8; id. 419, §53.)

The assessment of damages by the sheriff’s jury must be vacated, and the cause restored to its place on the calendar.