Opinion
December, 1931.
Order granting plaintiffs' motion for a jury trial of a framed issue arising under the counterclaim and the reply thereto reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, without costs. The litigants must be held to a consistent position. They obtained a denial of a motion to strike this case from the Special Term calendar upon the ground that the date of issue herein was August 21, 1931, as a consequence of a stipulation, and they obtained an affirmance of that order in this court on that same ground. They, therefore, may not utilize any other date as the issue date by way of seeking a jury trial of any issue arising under the counterclaim herein by way of coming within rule 157 of the Rules of Civil Practice, which provides that such a motion be made within twenty days after issue is joined. The motion herein was made more than twenty days after the issue date fixed upon and invoked by the plaintiffs and it was also made more than twenty days after the defendant's answer containing a counterclaim was served upon the plaintiffs. A jury trial, so far as plaintiffs were concerned, being discretionary herein, rule 157 applies and the terms thereof were not met by plaintiffs. The motion, therefore, should have been denied. Moreover, a sound exercise of discretion under the circumstances involved required a denial of the motion. ( Magnolia Metal Co. v. Drew, 68 App. Div. 47.) Lazansky, P.J., Young, Kapper, Carswell and Tompkins, JJ., concur.
See ante, p. 790. — [REP.