Opinion
November, 1906.
E.V.R. Ketchum, for appellant.
Henry J. Smith, for respondent.
The statute does not require both parties to demand a jury in order to secure the rights of both thereto. The record herein does not show that the plaintiff waived a jury at any stage of the case. Under the circumstances disclosed it was error for the learned justice to proceed to trial without a jury. The legal rights of the parties are correctly stated in Sherwood v. N.Y. Telephone Co., 46 Misc. 102.
GILDERSLEEVE and DOWLING, JJ., concur; DUGRO, J., taking no part.
Judgment reversed and new trial ordered, with costs to appellant to abide event.