SIGEL v. SIGEL

SIGEL v. SIGEL. N. Y. Superior Court; Special Term, June, 1892. 1. Trials ; awarding issuesl] The constitutional’right to a trial by jury in an action for divorce cannot be impaired by the rules of practice limiting the time for making an application to frame issues. 2. Alimony pendente litel] In an action against a husband for divorce, the operation of an order directing the payment of alimony until trial will be suspended, where defendant is ready for trial upon the cause coming up at an equity term, but plaintiff compels postponement by insisting on her right to a trial by jury. Motion to settle issues for the trial byvjury of an action for divorce for adultery. C. J. Kracht, for the motion. R. N. Waite, opposed. Rule 31 of the General Rules of Practice provides : “ In cases where the trial of issues of fact is not provided for by the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific questions 01 fact involved therein, be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order; and the court or judge may settle the issues, or may refer to a referee to settle the issues. Such issues must be settled in the form prescribed in sections 823 and 970 of the Code 01 Civil Procedure.” [MAJORITY — McAdam, J.] McAdam, J. The action is for divorce on the ground of adultery. Issue was joined May 6th, 1892. The plaintiff now moves to settle the issues that a trial by jury may be had. The motion came on for hearing this day, and the cause at the same time appeared on the equity calendar for trial. The plaintiff has a constitutional right of trial by jury (Batzel v. Batzel, 42 N. Y. Superior Ct. R. 561), which cannot be impaired by the rules of practice (Conderman v. Conderman, 44 Hun, 181). The effect of settling the issues is to postpone the trial for about one year. The plaintiff is entitled to this delay in the exercise of her constitutional right, but it should not unjustly prejudice the defendant, who is under an order to pay $12 a week alimony until the trial. The defendant is ready for trial now. The motion to settle the issues will be granted as of course, but the operation of the order for alimony will be suspended until the determination of the action. Nothing herein contained is to prevent the plaintiff from enforcing the payment of the counsel fee awarded, or any arrears of alimony till date, but she should not be permitted to avoid a trial now, and to compel the defendant to continue paying further alimony until the mode of trial she now elects to take can be had. The court must be just to the plaintiff, but equally fair to the defendant. Ad-interim alimony is not matter of strict right, but of sound discretion in the court (2 Bish. on M. & D. § 406). Settle order on notice.