Hendricks v. Carpenter

4 Rob. 665

• Court: The Superior Court of New York City
• Decided: December 30, 1865
• Status: Published

Opinion

By the Court,

Robertson, Ch. J.

The only point urged on this appeal is that a trial by jury is waived by the failure of either party to appear on the trial, by the 1st subdivison of section 266 of the Code, and therefore the assessment of the damages by a jury in this case, against the defendant Carpenter, was irregular. Unfortunately for this position, the language of that section is too clear for cavil. It provides for a waiver, which implies a voluntary relinquishment of a right, not the enforcement of one ; and' by the several parties, not by the act of any one, unless the other seeks to avail himself of it. The plaintiffs were not bound to accept the defendants’ waiver by his failing to appear. Indeed the exception is hardly capable of serious argument.

The order appealed from should be affirmed, with costs.