Apel v. O'Connor

Pratt, J.:

Appellant claims that as application for a trial by jury was not made within ten days after issue joined, the motion should have been denied. This contention would ordinarily prevail. By neglecting to make this application within the time prescribed, the moving party would certainly be without ground of complaint had the application been denied. Yet it cannot well be held that by failure of either party to move for a jury trial, the court loses the power to seek the assistance of a jury. When a court finds itself unable to decide a cause, it would be a severe ruling, and might produce a denial of justice, to forbid resort to the wisdom of a jury.

The order appealed from "was peculiarly within the discretion of the court, with which discretion we ought not to interfere.

Order affirmed, without costs.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order framing issues affirmed, without costs.