Opinion
June 23, 1960
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, JOHN C. LEONFORTE, J.
I. Ben Greenman for appellant.
A.M. C.H. Weinberg ( Charles H. Weinberg of counsel), for respondent.
Though the jury waiver clause would have entitled the defendant to have the action stricken from the Jury Calendar ( Caplan v. Goldman, 197 Misc. 404), if the defendant intended to challenge the plaintiff's right to jury trial, it was bound to act seasonably and with diligence. The defendant was not free to wait until the eve of trial, as it did here, while meanwhile the action was waiting to be reached on the Jury Calendar, before moving to strike it from that calendar ( Arkin v. Heller Co., 197 Misc. 1084). Since the delay was wholly unexplained, it was error to strike the cause from the Jury Calendar.
The order should be reversed, with $10 costs, and motion denied.
Concur — STEUER, J.P., HOFSTADTER and AURELIO, JJ.
Order reversed, etc.