Opinion
June 23, 1959
Order so far as appealed from unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellant, and plaintiff's cross motion to frame issues of fact to be tried by a jury is denied. By joining a cause of action to set aside and cancel a deed of record with one for partition of real property, the plaintiff lost her statutory right to a jury trial in the action for partition. Under the circumstances, the application to frame issues and for a jury trial was necessarily addressed to the discretion of the court (Civ. Prac. Act, § 430). Such an application must be made within 20 days after joinder of issue (Rules Civ. Prac., rule 157). The cross motion was not, therefore, timely served and "the right to apply for a trial by jury is waived."
Concur — Breitel, J.P., Rabin, M.M. Frank, McNally and Stevens, JJ.