
    Oscar Stevenson, Respondent, v. Arthur J. H. Brooks, Appellant.
    (Supreme Court, Appellate Term,
    March, 1909.)
    Municipal Courts: Procedure — Jury — Time for demanding: Review-Saving questions for review — Denial of jury trial.
    Under section 231 of the Municipal Court Act the omission of a defendant to demand a jury trial on joinder of issue under the original pleadings is not a waiver of his right to a jury upon the joinder of issue under amended pleadings which are in writing.
    Where a defendant’s motion, in the Municipal Court for a jury trial is seasonably made, he is entitled to an exception to a denial thereof; and the entry of an order denying his motion and an appeal from said order are unnecessary, as proceeding with the trial is no waiver of defendant’s rights.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, third district, borough of Manhattan.
    Howard A. Sperry, for appellant.
    Francis B. Wood, for respondent.
   Gildersleeve, J.

The action is for rent. The defense is a constructive eviction. Section 231 of the Municipal Court Act provides that, 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 the issue a jury trial is waived.” In the case at bar, when the issues' under the original pleadings were joined, no demand for a jury trial was made. Plaintiff, however, obtained leave to amend the summons' and complaint; and, when the answer to the amended complaint was filed and issues under the amended pleadings thus joined, defendant demanded a jury trial, which motion was denied. The omission of defendant to demand a jury trial upon the joining of issues under the original pleadings was not a waiver of his right to such trial upon the joining of issues under the amended pleadings, which are in writing. The trial resulted in a judgment for plaintiff, from which defendant appeals and brings up for review the refusal of the court to allow him a jury trial. The motion for a jury trial came on before one of the justices of the Municipal Court, who denied the same, hut adjourned the trial “pending his decision on this motion.” After he had denied the motion, the case came on before another justice, when defendant renewed his motion, which was denied because it had been made and denied by the other justice; and defendant thereupon sought to obtain an exception on the record, which was refused. This was error. The defendant had seasonably made his application and was entitled to an exception to the denial thereof. He was not obliged to enter an order denying his motions and appeal therefrom, nor did he waive his rights by proceeding with the trial.

MacLean and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  