Rafkind v. Isaacs , 34 N.Y.S.2d 425 ( 1942 )

Action to recover damages for personal injuries sustained as a result of the alleged negligence of the defendant in the operation of his motor vehicle. Order granting reargument and on reargument adhering to the original decision which denied defendant’s motion for leave to serve and file a notice of trial by jury nunc pro tunc, on the ground that it was omitted because of an excusable inadvertence, in so far as appealed from, reversed on the facts, without costs, and the motion granted, without costs. It appears that the note of issue served on defendant’s attorney was lost and that there was a failure to make a jury demand partly because of the inability of said attorney to obtain experienced assistance in his office in place of help lost to military service. It further appears that there is no evidence of an intent to waive a jury trial, and that defendant’s attorney acted promptly to correct the omission. Under all the facts and circumstances the relief should have been granted as an exercise of discretion. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.