Opinion
July, 1914.
Present — Ingraham, P.J., Clarke, Scott, Dowling and Hotchkiss, JJ.
This action was brought to restrain the defendant from bringing actions and filing lis pendens to vacate a final judgment of foreclosure and sale which had been executed by a sale of the premises. The action seems to have been at issue by the service of an answer which was verified on the 29th of June, 1907. When the action came on for trial at the Special Term the defendant, on the 20th of February, 1914, obtained an order to show cause why issues should not be framed for trial before a jury. That motion was denied on the 3d day of March, 1914, by the order appealed from, which denied the motion without prejudice to an application before the Special Term of the Supreme Court where the action had been called for trial. By rule 31 of the General Rules of Practice it is provided: "In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court if either party desires such a trial, the party must within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such motion is not made within such time, the right to a trial by jury is waived." This motion did not comply with this provision of the rule. The action was an action in equity to which neither party was entitled as a matter of right to a trial by jury, and it, therefore, is clear that the court below was justified in denying the motion. The order appealed from must, therefore, be affirmed, without costs.
Order affirmed, without costs.