Midtown Contracting Company, Appellant, v. Louis Goldsticker and Martin Goldsticker, Composing the Firm of L. & M. Goldsticker, Respondents

Midtown Contracting Company, Appellant, v. Louis Goldsticker and Martin Goldsticker, Composing the Firm of L. & M. Goldsticker, Respondents. First Department, July 9, 1915. Jury—motion by plaintiff to frame issues and for a jury trial — effect of prior notice of issues for trial at Special Term. A motion by a plaintiff to frame issues and for a jury trial thereof, after the reversal of a judgment in its favor and the granting of a new trial, made before the action was restored to the calendar, should not be denied on the ground that the plaintiff having originally noticed the issues for trial at Special Term had waived the right to a jury trial. Appeal by the plaintiff, Midtown Contracting Company, 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 April, 1915, denying plaintiff’s motion for a jury trial and to frame issues. C. Bertram Plante, for the appellant. William Goldsticker, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: The judgment secured by plaintiff after a trial of the issues of fact was reversed by this court and a new trial ordered (165 App. Div. 264). Thereupon plaintiff moved to frame issues and for a jury trial thereof. This motion was denied on the ground that plaintiff having originally noticed the issues for trial at Special Term had waived the right to a jury trial of framed issues. (See Hawkins v. Mapes-Reeve Const. Co., 82 App. Div. 72; Steverwald v. Gill, 85 id. 605.) Although after reversal no new notice of trial was necessary (Rules for Regulation of Trial Terms of Supreme Court, First Judicial District, rule 2), the cause could not be restored to the trial calendar save by consent or on notice. (Id.) Under these circumstances we think the parties were relieved of any election (Code Civ. Proc. § 1009) growing out of their original notices to have all the issues tried at Special Term, and that either was entitled to move for a jury trial of framed issues, provided the motion was made, as it was here, before the action was restored to the calendar. The Special Term did not pass upon the issues proposed by plaintiff and defendants proposed none. The order denying the motion should be reversed, with ten dollars costs and disbursements, and the motion granted, the issues to be tried to be framed on settlement of order. Present—Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, the issues to be tried to be framed on settlement of order. Order to be settled on notice.