Opinion
October 28, 1958
Romanoff, Kellner Borut for respondent.
Benjamin R. Leinhardt for petitioner.
This is a motion by a surviving spouse for an order that issues raised by her answer directed to the validity of a waiver of election be tried by a jury and issues be framed.
The right to trial by jury is a constitutional one preserved in those instances where it had heretofore existed in the Constitutions adopted in 1846 and 1894. The right of election was created by chapter 229 of the Laws of 1929, applicable to persons dying after August 31, 1930, and rights created thereby are not therefore determinable by a jury trial as a matter of right ( Potter v. Ricca, 111 N.Y.S.2d 489). The motion is denied.
Settle order on notice.