
    David Cantor et al., Doing Business as D & S Cantor Paper & Twine Co., Appellants, v. 255 West 15th Holding Corp., Respondent.
    Supreme Court, Appellate Term, First Department,
    June 23, 1960.
    
      
      I. Ben Greenman for appellant. A. M. $ G. H. Weinberg (Charles H. Weinberg of counsel), for respondent.
   Per Curiam.

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.  