Jackson v. Rosenbrock

69 Misc. 213, 126 N.Y.S. 712

• Court: New York Supreme Court
• Decided: October 15, 1910
• Status: Published

Opinion

Scudder, J.

The stipulation which was entered into by the parties to try the case at Special Term without a jury was limited to the particular term mentioned. The case not having been reached at that time, the plaintiff was not precluded by the stipulation from noticing the case for trial at a’subsequent jury term.

It was not necessary for the plaintiff to have the issues to - be tried by jury stated before noticing it for trial. Section 1544 of the Code of Civil Procedure expressly provides that in an action for partition the issues of fact as raised by the pleadings may he tried by jury.

The defendant Matthews received a notice of trial in ample time to permit him to apply to the court for an order directing the issues to he stated as prescribed by tbe Code of Civil Procedure, section 970. He should not he permitted to delay his application therefor until after the commencement of the term for which 'plaintiff has noticed the case, especially in view of the fact that plaintiff is willing to adopt the statement of issues as proposed by said defeud,ant.

Defendant’s motion to strike the case from the calendar denied, and plaintiff’s motion for statement of issues and to set this case down for trial at this term granted.

Ordered accordingly.