Opinion
May 27, 1939.
Milton N. Redman, of New York City, for plaintiff.
Chadbourne, Wallace, Parke Whiteside, of New York City, for defendant.
Plaintiff seeks an order directing the trial by a jury of all the issues raised by the complaint, answer and reply.
Plaintiff pleads in her amended complaint five causes of action, all arising out of her contract of employment as a travelling saleswoman for defendant. Defendant answered on March 2d 1939, with a general denial, plus two special defenses as to two of plaintiff's causes of action. The answer pleaded also two counterclaims, both growing out of plaintiff's employment by defendant. To these counterclaims plaintiff served a reply on April 20, 1939, and simultaneously served a demand for a jury trial of all the issues raised by the complaint, answer and reply. Defendant rejected plaintiff's demand for a jury trial on the ground that plaintiff had not served it in time and had therefore waived a jury trial of the issues. Rule 38(d), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
There can be no question but that the demand for a jury trial was timely in respect to issues raised by plaintiff's reply to the counterclaims pleaded in defendant's answer. Rule 38(b). Apart from the question of the demand for a jury trial being timely in respect to the issues raised by the complaint and the answer thereto, I am of the opinion that this is a proper case for the Court to exercise its discretion in favor of granting this motion for a trial by jury of all the issues raised by the complaint, the answer and the reply. Rule 39(c). These issues all arise out of plaintiff's employment by the defendant. It would be an anomalous situation to have the issues in respect to the counterclaims tried by a jury, and the issues in respect to the causes of action pleaded in the complaint tried by the Court without a jury. Much of the evidence would be the same on each trial and it would result in a duplication of the work of the Court. It would also add to the expense of the litigation for both parties. The motion for an order directing a trial by jury of all the issues involved in the complaint, answer and reply is therefore granted. Rule 39(c). Submit order on notice.