Whitton Automotive Parts Co. v. Yale Electric Corp.

231 A.D. 836

Opinion

Order granting motion of defendant Yale Electric Corporation to strike ease from the jury calendar and place it on the non-jury calendar reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The February 5, 1930, notice of trial containing the requisite demand for a jury trial having been served for the same term as was the previous January 28, 1930, notice of trial, and having been served before any note of issue had been filed with the clerk of the court, the case was properly placed upon the jury calendar on the theory that the second notice of trial superseded the first notice of trial. The service of the defective first notice of trial was not acted upon by filing a note of issue based thereon; the two omissions needful to effect a waiver under section 426 of the Civil Practice Act did not transpire. This view makes it unnecessary to pass upon the validity of the assertion of excusable error or its warranting the court to relieve the plaintiff from the effect of such claimed error. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur. [136 Misc. 831.]