Opinion
Action by Jacob J. Milstein against Edward Small Productions, Inc. On plaintiff's motion to place the case on the jury calendar.
Motion denied.
Samuel Gottlieb, of New York City, for plaintiff.
O'Brien, Driscoll & Raftery, of New York City (Milton M. Rosenbloom, of New York City, of counsel), for defendant.
MANDELBAUM, District Judge.
Plaintiff moves to place the above entitled action on the jury calendar of this court. On the argument of this motion, I indicated that I would deny the motion.
I have studied the affidavits and briefs submitted by both sides and have resolved to adhere to my original determination.
The court has discretion to permit a jury trial after waiver of same by failure to demand a jury. At bar, after plaintiff's failure to demand a jury trial as provided for in the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the defendant's attorney received a notice from the calendar clerk on or about March 6th that the case was on the nonjury calendar. Such notice was also sent to the plaintiff's attorney. Receipt of such notice is not denied. Since that time, more than two months have elapsed before the instant application was made. During that time, the matter was not dormant since an examination before trial of the plaintiff was in progress.
I feel that in view of the chronology of events, the exercise of the court's discretion in favor of the plaintiff would be an abuse thereof.
The motion is denied.