Tracy v. Falvey
Appellate Division of the Supreme Court of the State of New York
Appeal from Special Term. Action by Alberta P. Tracy and others against Catherine Ealvey and others. From an order granting plaintiffs’ motion for a jury trial on the issues, defendants appeal. Reversed. See 88 N. Y. Supp. 1118. This action was commenced In 1894, and was noticed for trial at Special Term in June, 1896, but was not then tried.
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Appeal from Special Term. Action by Alberta P. Tracy and others against Catherine Ealvey and others. From an order granting plaintiffs’ motion for a jury trial on the issues, defendants appeal. Reversed. See 88 N. Y. Supp. 1118. This action was commenced In 1894, and was noticed for trial at Special Term in June, 1896, but was not then tried. It was restored to the Special Term calendar, on plaintiffs’ motion in May, 1898, and was upon that calendar in November, 1899, when plaintiffs moved for the “entry of an order directing that the issues herein be tried upon the pleadings by a jury.” That…
1Opinion of the CourtO’Brien, J.
The learned judge at Special Term correctly held that in an action such as this—for partition—the plaintiffs were entitled to have the issues of fact tried by a jury, unless they had lost or waived their right. In passing, it may be said that the- rule deducible from the authorities is that the constitutional right to a jury trial may be waived, and where this occurs it cannot be retracted, but remains good during the life of the litigation. Matter 'of the Application of Cooper, 93 N. Y. 507; Baird v. The Mayor, 74 N. Y. 385. This rule, however, has no application to cases where, by the…
2Cases cited5 opinions
- Matter of the Application of Cooper, Etc.New York Court of Appeals · 1883
- Manheim v. SeitzAppellate Division of the Supreme Court of the State of New York · 1899
- Freifeld v. SireAppellate Terms of the Supreme Court of New York · 1903
- Manheim v. SeitzAppellate Division of the Supreme Court of the State of New York · 1899
- Oppenheim v. LewisAppellate Division of the Supreme Court of the State of New York · 1897
3Cited by4 opinions
- Spring v. Department of Labor & IndustriesCourt of Appeals of Washington · 1985
- Farmers Handy Wagon Co. v. Casualty Co. of AmericaSupreme Court of Iowa · 1918
- Lazier Gas Engine Co. v. YokomNew York Supreme Court · 1910
- Tracy v. FalveyAppellate Division of the Supreme Court of the State of New York · 1905