De Nigris v. Neuman ( 1944 )

Byrnes, Ch. J.

This is a motion to strike the case from the jury calendar. It appears that the plaintiffs served a note of issue by mail on August 25, 1944, containing the words, “ Issue of law and fact to be tried by the court ”, but also containing the following notation: “ Plaintiffs demand a trial by a jury of twelve.” The latter notation evidenced the intention of the plaintiffs not to waive trial by jury. The case seems to be precisely like Platt v. Ideal Novelty & Toy Co. (266 App. Div. 660). I have examined the record on appeal in the Platt case and 1 find that the note of issue which was there originally served, unaccompanied by a separate demand for a trial by jury, but containing a notation indicating the intention of the plaintiffs to require a jury trial, was not filed, but that the next day the plaintiffs served and filed another note of issue accompanied by a proper jury demand. So, in the present case, although a note of issue was originally served on August 25, 1944, none was filed until September 22, 1944; on that date a note of issue was filed, together with a proper demand for a trial by jury, both of these papers having been theretofore duly served.

On the authority of the Platt case (supra), this motion to strike the cause from the jury calendar is denied.