Opinion
Civ. No. 4316.
February 13, 1950.
Stone Hoffenberg, Rochester, N.Y., for plaintiff.
Judd Stakel, Batavia, N.Y., for defendant (John F. Davidson, New York City, of counsel).
Motion under Federal Rules of Civil Procedure, rule 39(b), 28 U.S.C.A., for an order allowing trial by jury. The issues in this case are mainly ones on which the plaintiff would not be entitled to a jury trial even though he had made seasonable demand. The question occurs now whether the plaintiff, having waived a jury trial by failure to demand it, should be accorded that right in the exercise of the Court's discretion.
It is not uncommon where such a combination of issues occurs in a case to have the parties voluntarily waive a trial by jury even though they have previously demanded it, and this is done because parties themselves frequently recognize that such a case may be better disposed of in that way. I feel that there can be a more orderly disposal of this case by having the Court pass upon all the issues, legal and equitable, rather than have the responsibility divided between Court and jury.
Motion denied.