Opinion
October, 1918.
Bailey Sullivan, for petitioner.
Robert H. Elder, for respondent.
Samuel A. Bossart, one of the two accounting executors of the last will and testament of the decedent presented two claims against the latter's estate, both of which were rejected by his co-executor. Pending the settlement of the account and the determination of the claims, the claimant died and his administrator now moves for a jury trial of the questions presented by the said claims and the rejection thereof.
The motion was made in January, 1918. At that time the administrator in question had not as yet been made a party to the accounting. Subsequently in September, 1918, an order was entered bringing the administrator into the proceeding and thereafter the attorneys stipulated that the motion be considered as though the administrator had been made a party prior to the making thereof, and that it be decided upon the merits.
Section 2537 of the Code of Civil Procedure so far as material provides as follows: "Whenever in any proceeding in the surrogate's court, the order or decree of the court will determine any issue or fact as to which any party has a right of trial by jury in any court, such trial shall be deemed to be waived, unless such party, personally, or through his attorney * * * appears and seasonably demands the same, in which case such trial shall be had according to the practice of such court."
And in section 2538 of the Code it is provided that: "In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury * * *, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same."
The question involved here is, whether or not a jury trial was seasonably demanded.
The account herein was filed on April 17, 1917, and a citation issued returnable on May 2, 1917. By a written notice of trial dated May 3, 1917, the claimant, through his attorney, gave notice that the matter would be brought to trial and an inquest taken therein before the surrogate of the county of Bronx on the 16th day of May, 1917. By a written stipulation dated May 8, 1917, the trial was adjourned to May 23, 1917, and by another written stipulation dated May 21, the trial was further adjourned to June 13, 1917. Thereafter, three further adjournments were taken to October 8, 1917. The claimant died on September 23, 1917, and since that time the matter had been further adjourned on six occasions before this motion was made. Letters of administration upon the estate of the claimant were granted to the moving party on December 11, 1917, and the matter was adjourned once after said date.
It is clear from the facts above detailed, that the claimant did not seasonably demand a jury trial and hence must be deemed to have waived it ( Matter of Holme, 167 A.D. 237) and that this motion, if it had been made by him, could not prevail. The administrator of his estate stands in no better position. If the claimant had assigned his claim to an assignee, the latter would have had no greater right than the assignor. The fact that the decedent's interest has passed to his personal representative by reason of the former's death instead of to an assignee by assignment does not alter the situation.
The motion will therefore be denied and the claim set down on the calendar of this court for trial on November 18, 1918.
Decreed accordingly.