Ulbricht v. Ulbricht

35 N.Y.S. 324, 89 Hun 479, 96 N.Y. Sup. Ct. 479, 69 N.Y. St. Rep. 723

Opinion

PER CURIAM.

This action was brought for a divorce, on the ground of adultery. The defendant was entitled, as matter of right, to a trial by jury of the issue of adultery, and she could only be deprived of that right in the manner provided for by the Code. She was not obligated to move the court for the purpose of framing the issues in order that they might be put in position to be tried by a jury. This was the plaintiff’s duty, if he desired to have his actian tried; and the fact that the defendant undertook that duty at a late day, as the plaintiff claims, is no reason for depriving her of the order which had been made in her favor for alimony and counsel fees. If there was any loches, it was the loches of the plaintiff, in not prosecuting his action diligently, and getting it into a condition of readiness for trial. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.