Selznick v. City of New York , 331 N.Y.S.2d 725 ( 1972 )

Defendant appeals from so much of an order of the Supreme Court, Richmond County, dated June 17, 1971, as conditioned the granting of its motion to vacate its default upon the waiver of a jury trial and the payment of $200 costs and disbursements. Order modified insofar as appealed from, by striking therefrom the conditions imposed; as so modified, the order is affirmed, without costs. We agree with the finding at Special Term that the default of the Corporation Counsel in answering the call of the calendar was not willful, and we are of the opinion that it resulted from a misunderstanding between the Corporation Counsel and the court at Trial Term. Defendant was entitled to have its default

vacated but it was improper to require that the city waive its right to a trial by jury (Glueck v. Tull, 192 App. Div. 81; Friedland v. Friedland, 238 App. Div. 869), and, under the circumstances of this case, the imposition of $200 costs and disbursements was an improvident exercise of discretion. Munder, Acting P. J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.