Tracy v. Falvey
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Catherine Falvey, individually and as executrix, etc., of Thomas Falvey, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1904, granting the plaintiffs’ motion for a jury trial of the issues in the action. 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 by the defendant, Catherine Falvey, individually and as executrix, etc., of Thomas Falvey, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1904, granting the plaintiffs’ motion for a jury trial of the issues in the action. 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,…
1Opinion of the Court
O’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 Cooper, 93 N. Y. 507; Baird v. Mayor, 74 id. 385.) This rule, however, has no application to cases where, by the express language of…
2Cases cited7 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
- Southack v. Central Trust Co.Appellate Division of the Supreme Court of the State of New York · 1901
- Toch v. TochAppellate Division of the Supreme Court of the State of New York · 1896
- Freifeld v. SireAppellate Terms of the Supreme Court of New York · 1903
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- Caldovino v. ScalaAppellate Division of the Supreme Court of the State of New York · 1960
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