In re the Probate of the Will of Warren

New York Surrogate's Court

In re the Probate of the Will of Warren

206 Misc. 825, 135 N.Y.S.2d 288, 1954 N.Y. Misc. LEXIS 2926

DecidedOctober 4, 1954

StatusPublished

This text of 206 Misc. 825 (In re the Probate of the Will of Warren) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Probate of the Will of Warren, 206 Misc. 825, 135 N.Y.S.2d 288, 1954 N.Y. Misc. LEXIS 2926 (N.Y. Super. Ct. 1954).

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Opinion

Rubenstein, S.

The proponent’s motion to strike out the contestants ’ demand for a jury trial is denied. It is not disputed that a copy of the objections containing the demand for a jury trial was timely served upon proponent’s attorney and that the original papers were timely mailed to the clerk of this court and returned by him because they were not accompanied by the jury fee. Contestants actually filed the objections and paid the jury fee three days late.

The court is satisfied from the facts that there was no intention on the part of the contestants to waive a jury trial and that their failure to strictly comply with the statute was due to inadvertence of their attorney. There is no showing that proponent has been adversely affected thereby. The filing of the objec[826]*826tions with the demand for a jury trial and the payment of the jury fee will be deemed to have been made as of August 24,1954, the date the papers reached the clerk by mail (Schwarts v. Sunlight Apartments, 274 App. Div. 901; Storch v. High Grade Land Corp., 273 App. Div. 1010; Sorrin v. Lieberman & Rind, 270 App. Div. 823; 295 Classon Ave. Co. v. City of New York, 267 App. Div. 961; Morabito v. Solomon, 278 App. Div. 657).

Submit order, on notice, accordingly.

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Rubenstein, S.

The proponent’s motion to strike out the contestants ’ demand for a jury trial is denied. It is not disputed that a copy of the objections containing the demand for a jury trial was timely served upon proponent’s attorney and that the original papers were timely mailed to the clerk of this court and returned by him because they were not accompanied by the jury fee. Contestants actually filed the objections and paid the jury fee three days late.

The court is satisfied from the facts that there was no intention on the part of the contestants to waive a jury trial and that their failure to strictly comply with the statute was due to inadvertence of their attorney. There is no showing that proponent has been adversely affected thereby. The filing of the objec[826]*826tions with the demand for a jury trial and the payment of the jury fee will be deemed to have been made as of August 24,1954, the date the papers reached the clerk by mail (Schwarts v. Sunlight Apartments, 274 App. Div. 901; Storch v. High Grade Land Corp., 273 App. Div. 1010; Sorrin v. Lieberman & Rind, 270 App. Div. 823; 295 Classon Ave. Co. v. City of New York, 267 App. Div. 961; Morabito v. Solomon, 278 App. Div. 657).

Submit order, on notice, accordingly.

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206 Misc. 825, 135 N.Y.S.2d 288, 1954 N.Y. Misc. LEXIS 2926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-warren-nysurct-1954.

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