Gale v. Ryan , 38 N.Y.S.2d 760 ( 1942 )

Levy, J.

Implicit in the language of subdivision 5 of section 426 of the Civil Practice Act and of subdivision 3 of rule II of the New York County Supreme Court Rules for Trial Terms, is the requirement that the note of issue and the jury demand shall be separate. Plaintiff did fail to serve a separate jury demand with the note of issue in compliance with that section and rule. The reference in the note of issue that the cause was to be tried before a jury is of no avail, since the failure to timely serve a separate jury demand indicated an abandonment of plaintiff’s intention that the trial' should proceed before a jury. Bakopoulos v. Bank of Athens Trust Co. (285 N. Y. 451) is distinguishable, since there the plaintiff on each occasion did serve a separate jury demand, together with the note of issue, thus giving the requisite notice of intention in strict compliance with the statute. The motion to strike is therefore granted, and the cause placed on the Non-Jury Reserve Calendar for February 27.1942. Order filed.