
    MALKIN v. DUBINSKY et al.
    United States District Court S. D. New York.
    Jan. 8, 1953.
    
      George D. Cohen, New York City, for plaintiff.
    Morris P. Glushien, New York City, for defendants.
   WEINFELD, District Judge.

The defendant contends that its answer served on November 17, 1952, was the date of the last pleading. But it appears that on that day the complaint was amended by stipulation. Some confusion seems to have resulted from this situation, and at plaintiff’s request another stipulation was entered into on December 4, 1952, “that the Defendants’ Answer shall he regarded as responsive to the amended Paragraph 12 of Plaintiff’s Complaint.” Within four days thereafter, on December 8th, plaintiff served a demand for a jury trial, which was promptly filed. The defendant now moves to strike the demand, urging that the last day was November 27th under Rule 38(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

A question does exist as to when the last pleading was served. Even assuming the defendant is correct, the Court, in the exercise of discretion, has the power to relieve the plaintiff of the alleged failure to serve the jury demand within time under Rule 6(b) ; and also under Rule 39(b) to grant a jury trial where not previously demanded. Clearly, this is not a case of inadvertence or oversight. The amendment of the complaint and the resulting stipulations appear to have caused confusion. The plaintiff has made out a case warranting relief under Section 6(b).

The motion is denied.

Settle order on notice.  