Opinion
10-04-1954
In the Matter of the Probate of The Will of La Verce T. Warren, Deceased.
Charles J. Hyman for Joseph H. Warren, proponent. Henry R. Williams for Ruth Goodwater and another, contestants. RUBENSTEIN, S. The proponent's motion to strike out the contestants' demand for a jury trial is denied. It is not disputed that a copy of the objections containing the demand for a jury trial was timely served upon proponent's attorney and that the original papers were timely mailed to the clerk of this court and returned by him because they were not accompanied by the jury fee. Contestants actually filed the objections and paid the jury fee three days late. The court is satisfied from the facts that there was no intention on the part of the contestants to waive a jury trial and that their failure to strictly comply with the statute was due to inadvertence of their attorney. There is no showing that proponent has been adversely affected thereby. The filing of the objections with the demand for a jury trial and the payment of the jury fee will be deemed to have been made as of August 24, 1954, the date the papers reached the clerk by mail (Schwartz v. Sunlight Apartments, 274 App. Div. 901; Storch v. High Grade Land Corp., 273 App. Div. 1010; Sorrin v. Lieberman & Rind, 270 App. Div. 823; 295 Classon Ave. Co. v. City of New York, 267 App. Div. 961; Morabito v. Solomon, 278 App. Div. 657). Submit order, on notice, accordingly.