Opinion
October 18, 1948.
Appeal from resettled order denying plaintiffs' motion for leave to serve and file a demand for a jury trial nunc pro tunc. Order reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, without costs. The facts show that there was no intention to waive a jury trial and that the failure to demand a jury trial was due to the inexperience of plaintiffs' attorney's assistant. Since the motion to be relieved from the inadvertence was made so soon after the mistake occurred and could not adversely affect the defendant, the relief should have been granted. ( Storch v. High Grade Land Corp., 273 App. Div. 1010; Sorrin v. Lieberman Rind, Inc., 270 App. Div. 823; 295 Classon Ave. Co. v. City of New York, 267 App. Div. 961.) Carswell, Acting P.J., Johnston, Adel, Nolan and Wenzel, JJ., concur.