Prehle v. Graeme

186 Misc. 376, 58 N.Y.S.2d 398, 1945 N.Y. Misc. LEXIS 2448

Opinion

Shientag, J.

Motion is granted to the extent of permitting defendant to serve and file a demand for a jury trial nunc pro tunc for the October, 1945, term. Upon payment of the necessary jury fee the clerk is directed to transfer the above-entitled action from the nonjury calendar to the jury calendar of this court.

The situation presented in this case is such as to bring it clearly within the provisions of the 1945 amendment (ch. 264) to subdivision 5 of section 426 of the Civil Practice Act. This amendment was designed expressly to confer power upon the court to relieve a party from a waiver of a jury trial due to inadvertence or excusable error. The amended provision provides that “ The court in its discretion may relieve a party from a failure to comply with the provisions of the subdivision if no undue delay or prejudice to the rights of another party would result.”

In this case the failure to demand a jury trial and to pay the jury fee was due to inadvertence and excusable error and the correction of such error will in no way prejudice the rights of the plaintiff.

Settle order.