
    Mary Ann Jackson, Plaintiff, v. Sarah Maria Rosenbrock and Others, Defendants.
    (Supreme Court, Nassau Trial Term,
    October, 1910.)
    Jury — Eight to jury trial: Requirement that issues he framed: Waiver of right — Stipulation.
    A stipulation that a cause he tried at Special Term without a jury is limited to the particular term mentioned, and if the ca.se is not reached tlxe plaintiff is not precluded from noticing the case for trial at a subsequent jury term, and a motion by defendant to strike the cause from the calendar will be denied.
    The -plaintiff in an action of partition need not have the issues to be tried by the jury stated prior bo the notice of the cause for trial.
    Where the defendant was served with -notice of trial in time to permit him to apply for an order directing -rue issues to be stated as -prescribed by section 970 of the Code of Civi-l Procedure, he will not be permitted to delay his application for such order until after the commencement of the term for which plaintiff, who is willing to adopt the statement of issues as prescribed by defendant, has noticed the case for trial.
    Motion by defendant Samuel Matthews to strike case from the trial calendar upon the ground that, the action being in partition, the plaintiff had waived the right to a jury trial by entering into -a stipulation with the other defendants, “ that- the issues of fact herein be tried before the court without a jury at the May Term, 1910,” and could not, therefore, notice -the issues for trial by jury and that plaintiff could not by motion at the opening of the term have certain questions of fact stated for jury trial at that term, under sections 970 and 1544 of the Code of Civil Procedure, without having first served -a notice of trial of such questions.
    Lincoln B. Haskin, for motion.
    Maxson & Jones, for plaintiff, opposed.
   Scudder, J.

The stipulation which was entered into by the parties to try the case at Special Term without a jury was limited to the particular term mentioned. The case not having been reached at that time, the plaintiff was not precluded by the stipulation from noticing the case for trial at a’subsequent jury term.

It was not necessary for the plaintiff to have the issues to - be tried by jury stated before noticing it for trial. Section 1544 of the Code of Civil Procedure expressly provides that in an action for partition the issues of fact as raised by the pleadings may he tried by jury.

The defendant Matthews received a notice of trial in ample time to permit him to apply to the court for an order directing the issues to he stated as prescribed by tbe Code of Civil Procedure, section 970. He should not he permitted to delay his application therefor until after the commencement of the term for which 'plaintiff has noticed the case, especially in view of the fact that plaintiff is willing to adopt the statement of issues as proposed by said defeud,ant.

Defendant’s motion to strike the case from the calendar denied, and plaintiff’s motion for statement of issues and to set this case down for trial at this term granted.

Ordered accordingly.  