Opinion
April 26, 1943.
This action is brought upon two "all-risk" policies of insurance, issued by defendants, to recover the value of certain articles of personal property alleged to have been lost from plaintiffs' apartment by reason of burglary. The action was tried by the court without a jury, plaintiffs having waived a jury trial. Subsequently a judgment in plaintiffs' favor was reversed and a new trial granted. Plaintiffs then moved to have the action tried by the court and a jury. The motion was granted and defendants appeal. Order reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Plaintiffs having waived their right to a jury trial cannot now retract this waiver, and it remains good during the life of the litigation. ( Tracy v. Falvey, 102 App. Div. 585; cf. Matter of Cooper, 93 N.Y. 507; Baird v. Mayor, 74 N.Y. 382. ) Hagarty, Carswell, Johnston, Adel and Lewis, JJ., concur.