
    Alphonse S. Sherwood, Respondent, v. The New York Telephone Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Motion to remove cause from Municipal Court of New York reviewable on appeal — Error in refusing trial by jury.
    The denial of a motion to remove a cause from the Municipal Court of New York to the City Court may be reviewed on appeal and a supplemental answer with plea to the jurisdiction in the lower court is not necessary.
    Where, in the Municipal Court of New York, the plaintiff has demanded a jury and subsequently waived the jury, owing to repeated technical objections to the array interposed by the defendant, such defendant is still entitled to demand a jury trial and it is reversible error for the court to deny such application and proceed with the trial if the defendant offers to pay the fee for another panel.
    Both parties have a right to a jury trial in said court and such trial is only waived when neither party makes a demand therefor. The plaintiff, by waiving such right, cannot, against objection, deprive the defendant of the right.
    Section 231 of the Municipal Court Act does not require both parties to demand a jury in order to secure the rights of both thereto.
    
      Appeal by the defendant from a judgment entered in fayor of the plaintiff and against the defendant by the justice of the Municipal Court of the city of New York, twelfth district, for $200 damages and costs.
    Warren Leslie (Alfred B. Cruikshank, of counsel), for appellant.
    Kenneson, Emley & Rubino, for respondent.
   Gildersleeve, J.

This action was originally brought to recover $500 for use and occupation of plaintiff’s roof, at No. 1557 Broadway, by the defendant, in the stringing and maintenance of its wires and construction, for a period of six years prior to January 2, 1904. . The pleadings were oral and the answer a general denial. On the return day there was a motion by the plaintiff to reduce the amount sued for to $200, and a motion by the defendant, on tendering an order and bond, for removal of the action to the City Court.

It is the claim of the defendant that when the order of removal and bond were tendered the justice was bound to "make the order, and thereafter the court had no jurisdiction to proceed with the trial of the cause. The record contains the following statement by the trial justice of what occurred on the return day, viz.: “ On the return day the parties attended before me and after issue was joined the plaintiff moved to reduce the amount sued for to $200, which motion was granted. Thereafter the defendant presented a bond and order removing the action to the City Court of the city of New York. I held the same was tendered too late and denied the application to remove the case to the City Court of the city of New York. The defendant duly excepted.” We accept the return as conclusive of what transpired and hold that the court properly denied the application and had jurisdiction to try the cause. Kilpatrick v. Carr, 3 Abb. 117; Barber v. Stettheimer, 13 Hun, 198.

But independently of that if it were denied that the two motions were made and considered simultaneously, the result was a proper one within the doctrine of Jaycox v. Pinney, 62 Barb. 344.

The denial of a motion to remove a cause of action from the Municipal Court to the City Court may be reviewed upon appeal. It is not necessary to raise the question that a supplemental answer and plea to the jurisdiction should be received in the court below. Greve v. Wallowitz, 24 Misc. Rep. 601.

In addition to the foregoing, on the return day the plaintiff asked for a jury and paid the jury fee. The cause was set for trial at a subsequent day and when reached counsel for defendant presented a challenge to the array of jurors. The plaintiff incurred the expense of two panels, and portions of two days were exhausted in endeavoring to obtain a jury. Every effort was baffled by a series of ingenious and technical objections on the part of defendant’s counsel. Wearied with the struggle in trying to get a jury satisfactory to the counsel for the defendant, plaintiff’s counsel stated he waived a jury. Whereupon defendant’s counsel arose and stated as follows: “ The defendant now demands that this case be tried by a jury and tenders the necessary amount and offers to pay the jury fee.” The court denied this application of the defendant upon the ground that it was too late, and held that the jury should have been demanded by the defendant on the return day. The defendant duly excepted.

The trial then proceeded without a jury and resulted in a judgment for the plaintiff for the full amount claimed.

At the end of the plaintiff’s case a motion was made under section 166 of the Municipal Court Act to amend the cause of action to trespass in order to conform pleadings to the proof, and was granted. Ho proof was offered by plaintiff after the making and granting of this motion, and the defendant offered no testimony in defense. The defendant, however, answered the amended complaint as follows: "First, a general "denial; and second a license from the plaintiff to enter upon the property.”

The cause of action having been changed from one on contract to one in tort for the trial of the new issue, as thus joined, defendant demanded a trial by jury and tendered the jury fee. The court denied the application. The defendant claimed there had been no trial of this issue and asserted that on the question of trespass its course of cross-examination of plaintiff’s witnesses might have been different. Counsel urged that defendant was within its legal rights in demanding a jury trial of the new issue. We express no opinion here on the question raised by and subsequent to the amendment of the pleadings. We review the course of the trial and the rulings by which the defendant was deprived of a trial by jury, of the issue as originally framed.

Section 231 of the Municipal Court Act (Laws of 1901, chap. 466) 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 issue, a jury trial is waived.”

It will be seen that a jury trial may be secured upon the demand of either party, and that a jury trial is only waived when neither party makes such demand. Rubenstein v. Silberfeld, 24 Misc. Rep. 201.

The plaintiff took the necessary preliminary steps to a trial by jury; such a trial was ordered and the selection of a jury begun with the result above detailed. Under these circumstances we think the defendant had a right to rely upon having a jury trial. Had not the plaintiff demanded it defendant might have done so.

The methods pursued by defendant’s counsel in the selection of a jury may tend to show no particular desire for one, but they do not affect the question of the defendant’s right to a jury as a matter of law. The plaintiff might waive the right to a jury trial on his part, but could not, against the defendant’s objection, deprive it of that right. When the jury was ordered the cause became one for a jury, and the trial justice could not lawfully proceed to try the issues alone, except upon the consent of both parties or until both parties had waived a jury. The statute does not require both parties to demand a jury in order to secure the rights of both thereto. In the case at bar five jurors had been impaneled when the court discharged the jury. The defendant then demanded that the ease be tried by a jury and offered to pay the jury fee for another panel.

In New York Dyeing & Printing Co. v. Fox, 6 Daly, 467, it was held that where plaintiff has demanded a jury and afterward waived it,, defendant must offer to pay the jury fees if he desires a jury trial.

To pérmit the party demanding a jury to dispense with it at any stage of the trial that might be to his liking over the objection of his opponent would be an entirely new practice and would result in great confusion, embarrassment and injustice.

We are of the opinion that at the time in question it was error to permit the plaintiff to proceed before the justice alone and to deny the defendant a jury trial, and that, on this ground, the judgment should be reversed.

Having reached this conclusion we are not called upon to discuss the other questions raised upon this appeal.

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

Freedman, P. J., and MacLean, J., concur.

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