
    Richmond D. Moot, Respondent, v. Margaret A. Moot, Appellant.
    Third Department,
    November 11, 1914.
    Husband and wife — divorce — practice — application for jury trial — constitutional law.
    As there is a constitutional right to a jury trial on the issue of adultery, rule 31 of the General Rules of Practice requiring an application for a jury trial to be made within twenty days after joinder of issue and providing that a failure to apply within that time is a waiver of the right, is unconstitutional and void.
    Hence, an application for a jury trial on the issue of adultery in an action for divorce may be made at any time, unless voluntarily waived.
    
      Appeal by the defendant, Margaret A. Moot, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Schenectady on the 10th day of August, 1914, granting plaintiff’s motion to settle the issues herein for a trial by jury.
    
      Hoyt & Spratt [Alfred L. Becker of counsel], for the appellant.
    
      Daniel Naylon, Jr., for the respondent.
   Howard, J.:

This is an action for an absolute divorce. The issue of adultery was joined by the pleadings. The plaintiff herein did not apply to the court to have that issue tried by a jury, and to have it distinctly and plainly stated, until after more than twenty days had elapsed after the joinder of issue. Rule 31 of the General Rules of Practice requires that such an application must be made within twenty days after the joinder of issue. The rule further declares that a failure to make the application within such time constitutes a waiver of the right to a jury trial. Therefore, the only question to determine here is whether the failure of the plaintiff to ask for a jury trial within the time limit set by rule 31 does constitute a waiver of his right., We have concluded that it does not.

This question has been written upon several times previously and we do not deem it necessary to add greatly to what has been said. The history of the legislation, and references to all the adjudications on the subject, appear in the previous opinions. The question first arose in the First Department in Cohen v. Cohen (160 App. Div. 240). There the court was divided, the majority of the court holding contrary to our view here. The question next presented itself in the Second Department in Halgren v. Halgren (160 App. Div. 477), where rule 31 was held to be unconstitutional. We are in accord with the views briefly expressed there and with the more elaborate dissenting opinion in Cohen v. Cohen {supra), as well as -with the opinion of the learned justice who wrote in the Special Term below (86 Misc. Rep. 495).

In addition to what has been said in the other opinions, it is well to note the exact language of sections 970 and 1757 of the Code. Section 1757, which relates exclusively to divorce, says: “If the answer puts in issue the allegation of adultery, the court must, upon the application of either party, or it may, of its own motion, make an order directing the trial, by a jury, of that issue; for which purpose the questions to be tried must be prepared and settled, as prescribed in section nine hundred and seventy of this act.” In other words, if either party asks for it, the court must make an order directing a jury trial, in which case the procedure outlined in section 970 must be followed. Now let us look at section 970. A party entitled to a jury trial by express provision of law (and section 1757 is an express provision of law) “may apply,” section 970 says, “ upon notice, to the court for an order, directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly.” He may do this or not as he chooses. It is only a suggestion; not a command. He may decide at the last moment, on the day -of trial, that he wishes a jury. If he does so decide he is entitled to it. This may result in some inconvenience; but a constitutional guaranty is superior to convenience. It will thus be observed that the Legislature has been exceedingly careful not to foreclose suitors, at any stage of- the litigation, of their constitutional right to h jury trial. A rule of practice which conflicts with these provisions of the Code is, of bourse, inconsistent with it and, therefore, invalid.

Under the Constitution (Art. 1, § 2) the plaintiff is entitled to have the issue of adultery joined herein tried by h jury. (Conderman v. Conderman, 44 Hun, 181.) Section 1757 of the Code also accords to him this right. He may waive the right, but he cannot be deprived t>f it. He may waive the right in one of the ways pointed out in section 1009 of the Code; but no one can impose conditions upon him which operate as a waiver. On no day during the pendency of the suit can anybody, except the litigant himself, put his right in jeopardy.

The Constitution is the fundamental law of the State; neither legislators nor judges are permitted to trench upon it. Any act of the Legislature or rule of the judges which narrows or limits or fetters the rights of the people as guaranteed to them by the Constitution is void and wholly ineffectual. The convention of justices assigned to the Appellate Division may make rules which have the force and effect of laws; but they may not make rules which override the laws. (See Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 94.) They are authorized to make rules of procedure to assist litigants in approaching the court; but they are not authorized to destroy the basic law of the State nor abrogate the statutes. And neither can the convention of justices, by formulating rules for the exercise of a constitutional right, deprive the citizen of such a right. In enacting rule 31 the convention of justices, of course, had no thought of infringing upon the Constitution; the rule, however, is, on that account, none the less destructive.

The Constitution declares that the parties to a suit of this kind shall have the right to a trial by jury — have the right not for twenty days, hut forever. The Legislature in enacting the various sections of the Code on the subject has disclosed a purpose to be cautious not to cripple, nor to permit the convention of justices to cripple, the citizen in the exercise of this right; on the contrary, it has reiterated and confirmed the right by the. explicit language of section 1757 of the Code — confirmed it without condition, stint or limit. And it is well that the Legislature has not permitted the courts, even though they do so inadvertently, to make rules which defeat, in any particular, the spirit of the Constitution, for no rule enacted merely for the accommodation of the courts should predominate over constitutional rights. It is clear that rule 31 does hamper the citizen in the exercise of his right to a jury trial in divorce suits, and, in the case before us, it has utterly deprived the plaintiff of that right. This cannot be; this renders the rule repugnant to the Constitution and makes it void.

The order should he affirmed, with costs.

All concurred, except Smith, P. J., dissenting; Woodward, J., not sitting.

Order affirmed, without costs.  