
    MACK et al. v. 48 VESEY STREET CORPORATION.
    District Court, S. D. New York.
    June 27, 1947.
    Duberstein & Nimkoff, of New York City, for plaintiff.
    M. S. & I. S. Isaacs, of New York City, for defendant.
   KNOX, District Judge.

By order dated February 28, 1947, plaintiffs were directed to furnish defendant with a bill of particulars with respect to certain matters therein set forth. Defendant now asserts that the particulars which plaintiffs supplied did not fully comply with the order. By the instant motion, defendant seeks a further bill of particulars, and asks leave to amend its answer so as to include defenses that are set forth in the notice of motion.

The complaint in this action was filed on August 5, 1946, and the answer on December 6, 1946. By notice of motion dated January IS, 1947, defendant moved for a bill of particulars to enable it to prepare for trial. No one appearing in opposition thereto, the motion was granted. The Court is satisfied that the plaintiffs have substantially complied with the'order of the court in serving their bill of particulars. Some of the information sought is apparently within the knowledge of the defendant. Recourse may be had to discovery as provided by the rules.

Plaintiffs do not object to that part of the motion which seeks leave to amend the answer, but ask that such relief be conditioned upon their having the right to demand a trial by jury by sérvice of a demand within ten days after service of the amended answer. Rule 38 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, specifies the time within which a demand for jury trial must be made. The question of plaintiffs’ right to a jury trial, presented by this motion, can not be determined on the moving papers now before the court. Plaintiffs seem to have waived their right to a jury trial as to the issues raised by the original pleadings. On the other hand, the amendment of the answer may, possibly, entitle plaintiffs to seek a jury trial as to the issues thus presented. If this be true, and if the fact be properly shown, plaintiffs may seek relief under Rule 39 (b).

Defendant may amend its answer and plaintiffs, if so advised, may demand a jury trial of any issues thus created. This court, however, does not here determine that a jury trial is to be had as to all or any part of this action.

Defendant’s application for further particulars is denied.  