JENKS, J.:

The action is brought in the Municipal Court for loss of services of a wife consequent upon injuries suffered by her when a passenger in a car of the defendant. On the return day of the summons the plaintiff demanded a jury trial and a venire was issued. When the case came on for trial the defendant challenged the venire and the jurors drawn. The challenge was sustained, under exception by the plaintiff, who thereupon said that he would try the cause without a jury. The defendant declined to proceed without a proper jury. The plaintiff objected that the defendant could not demand a jury at that time. The defendant replied that such was its demand. The court ruled that the cause must go to trial without a jury. The defendant objected and the court ruling that it then demanded a jury and tendered the fees, denied the motions of the defendant, overruled its objections and under exception the cause was tried without a jury. The court alone was not empowered to try the cause if a jury trial was demanded. (Mun. Ct. Act, § 230.) The point of the respondent is that inasmuch as section 231 provides, "At any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue, a jury trial is waived," the defendant had waived its right by omission to demand the jury at the joinder of issue. But either party may demand a jury and thus secure it, and it is only when neither party makes such demand that the jury is waived. In this case the plaintiff had duly demanded the jury and hence a trial by jury was then assured to both parties. The defendant had the right to rest upon the action of the plaintiff and to assume that the trial would be by jury, and there was no reason why it should have then on its part taken a step like unto that already taken by the plaintiff to obtain a like condition for both parties. The plaintiff could not waive the demand against the protest of the defendant because his demand had assured a right to the defendant as well as to himself; and the court had no power to dispense with the jury against the protest of the defendant. ( Sherwood v. N.Y. Telephone Co., 46 Misc Rep. 102.)

The judgment must be reversed and a new trial must be ordered before a court and a jury, costs to abide the event.

WOODWARD, HOOKER and MILLER, JJ., concurred; HIRSCHBERG, P.J., not voting.

Judgment of the Municipal Court reversed and new trial ordered before a court and jury, costs to abide the event.