Martin v. Borden
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, James F. Martin, as guardian ad litem, etc., from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 25th day of January, 1902, pursuant to an order entered- in said clerk’s office on • the 27th day of December, 1901, reversing a judgment of a justice of the peace of the town of Cortlandt in. favor of - the plaintiff, and also from the said order pursuant to which the judgment appealed from…
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Appeal by the plaintiff, James F. Martin, as guardian ad litem, etc., from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 25th day of January, 1902, pursuant to an order entered- in said clerk’s office on • the 27th day of December, 1901, reversing a judgment of a justice of the peace of the town of Cortlandt in. favor of - the plaintiff, and also from the said order pursuant to which the judgment appealed from was entered. - - '
1Opinion of the Court
Gaynor, J.:
The plaintiffs judgment was for damages by the bite of the defendant’s dog. It was reversed on the grounds that a jury trial was refused and that it was not shown that the defendant had knowledge of the viciousness of. the dog. The defendant demanded a trial by-jury at the joining of issue, but did not deposit the jurors’ and constable’s fees in advance, as directed to do by the justice and required by law. This was á waiver of a jury trial, and it was the duty of the justice to proceed with the trial without a jury on the adjourned day, as he did (Code Civ. Pro. § 2990). There…
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