Opinion
June 28, 1946.
Appeal from Supreme Court, New York County, DINEEN, J.
Harry P. Rich of counsel ( Jacob J. Milman with him on the brief), for appellants.
Seymour L. Collin of counsel ( George A. Grabow with him on the brief; Philip Prosk, attorney), for respondents.
The note of issue in this action was served for the February, 1945, term. The parties to the action did not demand a jury trial. The case was placed on the nonjury calendar. Thereafter the plaintiffs moved to transfer the case to the jury calendar. That motion was properly denied by the Justice at Special Term, who said: "Plaintiffs' failure to demand a jury at the time of the service and filing of the note of issue constitutes a waiver under section 426, subdivision 5, which may not now be remedied."
That decision follows a long line of cases, including the opinion of Mr. Justice McAVOY in Goldstein v. Langenieux ( 230 App. Div. 445).
The present motion was then made by the plaintiffs to discontinue the action. It was opposed by the defendants on the following ground: "The purpose of the discontinuance is to bring another action by the same plaintiffs against the same defendants in which new action a jury will be demanded."
In the order appealed from, the court granted the motion on payment of taxable costs and disbursements to date.
The right of the plaintiffs to a jury trial was waived when the note of issue was served and filed without a demand for a jury. It would be improper to permit the discontinuance of the present action and the institution by the plaintiffs of another action for the same relief in which they could obtain a jury trial. The plaintiffs may not do indirectly what they are not permitted to do directly. Furthermore, the trial of such newly instituted action would be delayed for several years beyond the time when the present action could normally have been tried. The record here discloses that the case appeared on the ready nonjury calendar a year ago and that there have been repeated adjournments at the plaintiffs' request. A long delay while a newly instituted action works its way up on the jury calendar is a substantial prejudice to a defendant who is ready to try the case.
Under all the circumstances the motion to discontinue the action is granted only on condition that, in addition to the payment by plaintiff of the taxable costs and disbursements to date, no further action be instituted by these plaintiffs against these defendants for the same relief.
The order appealed from should be modified in accordance with this opinion and as so modified affirmed, with $20 costs and disbursements to the appellants.
TOWNLEY, GLENNON, CALLAHAN and PECK, JJ., concur.
Order unanimously modified in accordance with opinion and as so modified affirmed, with $20 costs and disbursements to the appellants. Settle order on notice. [See post, p. 773.]