Opinion
January, 1934.
Present — Lazansky, P.J., Young, Kapper, Carswell and Davis, JJ.
Interlocutory judgment unanimously affirmed, with costs. The defendant was estopped to assert that the action was improperly on the Special Term calendar, by reason of his conduct earlier in the litigation. Moreover, he waived a trial by jury, having failed to make a demand therefor pursuant to section 426 of the Civil Practice Act within the time prescribed after he had been served with a notice of trial by the plaintiff. He had a trial before a judge, without a jury, at Special Term, which differs in no particular, as a matter of substance, from a trial on the law side of the court before a judge without a jury.