Opinion
June, 1907.
Fuller Reuman, for respondents.
Frank V. Johnson, for respondent Garvey.
Willard S. Allen, for appellant.
Plaintiff brought this action for personal injuries, and in her verified complaint alleges a joint liability for negligence on the part of the defendants. The defendants, the Adams Dry Goods Company and the Manhattan Bedding Company, appeared on February 18, 1907, and joined issue, filing verified answers. At that time the defendant Garvey had not been served with process; and the case was adjourned until February twenty-sixth, and again to March sixth, at which latter date Garvey appeared and answered, and the case was held open until March seventh to enable Garvey to file a verified answer. On March sixth, at the time Garvey appeared, the plaintiff demanded a jury trial; and a venire was issued and the case adjourned until March fifteenth for trial. Upon March fifteenth all the parties appeared and the plaintiff requested that the jury be empanelled and sworn. The defendants, the Adams Dry Goods Company and the Manhattan Bedding Company, objected to a jury trial upon the ground that plaintiff, not having demanded a jury at the time that issue was joined, was not entitled to a jury. The defendant Garvey made no objection. The court suggested that the plaintiff sever the action as against the objecting defendants and proceed against the other with a jury; but the plaintiff's counsel refused to proceed, unless the trial as to all the defendants was had with a jury. The court thereupon dismissed the complaint. The Municipal Court Act, section 231, does not give a party an absolute right to a jury trial, but only such right if "demanded at the joining of issue." If the plaintiff had desired to save his right to a jury trial, he could have demanded a jury on February eighteenth, when issue was joined as to the defendants, the Adams Dry Goods Company and the Manhattan Bedding Company, and, not having done so, he was not entitled to a jury trial as to them on March fifteenth; and if his cause of action was such that he could not recover against the defendants severally, he should have proceeded without a jury or withdrawn his action. The judgment, however, should be for a reversal without prejudice to a new action.
Judgment modified by providing that the action be dismissed without prejudice to a new action and as modified affirmed, with costs.
GILDERSLEEVE and GOFF, JJ., concur.
Judgment modified and as modified affirmed, with costs.