Stafford v. Lesser ( 1910 )

BIJUR, J.

It appears sufficiently from the record that appellant paid the jury fee when issue was joined, and demanded a jury trial. When, by reason of adjournments, this jury fee had been “exhausted,” and the case came on for trial thereafter, appellant tendered a new jury fee, and again demanded a jury trial. Its refusal constitutes reversible error.

Participation in the subsequent trial was not a waiver of his right to a trial by jury. Stevenson v. Brooks, 62 Misc. Rep. 489, 115 N. Y. Supp. 118.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.