
    Robert Lee Fischer, Plaintiff, v. Florence E. Fischer, Defendant.
    (Supreme Court, New York Special Term,
    July, 1909.)
    Divorce — Trial — Trial of issues of fact by jury — Waiver.
    Where, after the court in an undefended action for divorce had directed the entry of an interlocutory judgment in plaintiff’s favor, the ease was reopened on motion of defendant who put in an answer and testified, and six months after the entry of an interlocutory judgment in plaintiff’s favor it was vacated on motion of defendant and a new trial granted because of collusion between the parties as to the specific act of adultery upon which the interlocutory judgment had been found, a motion by defendant to frame issues for a jury upon the new trial will be denied, as, under the circumstances, the right to a jury trial has been waived.
    Motion by the defendant to frame issues for trial by jury in an action for divorce.
    Sidney R. Lash, for motion.
    Battle & Marshall (George Gordon Battle, of counsel opposed.
   Giegerich, J.

It appears that this action came on for trial before the court without a jury and was undefended. Testimony was taken and the court directed an interlocutory judgment in favor of the plaintiff. A few days later the defendant’s attorney applied to the court to reopen the case, which was done. Several hearings were thereafter had before the eourt, the defendant being represented by counsel interposing an answer and herself testifying. The ease was finally closed and an interlocutory judgment directed in favor of the plaintiff, which was afterward entered. Some six months later a motion was made by the defendant to vacate the interlocutory judgment and grant a new trial, and the motion was granted, the court saying that-, although there could he no doubt of the criminal relations between the defendant and the corespondent, there had been collusion between the plaintiff and the defendant as to the specific act of adultery upon which the interlocutory judgment had been founded. A motion is now made by the defendant to frame issues for a jury upon the new trial. I think, under the circumstances disclosed, the defendant has waived her right to a jury trial. Chase v. Chase, 44 N. Y. St. Repr. 166. The case cited was brought for an absolute divorce and, the defendant having made default in answering, an order of reference to take proof and report was obtained by the plaintiff. Before the hearing the defendant moved to open the default and vacate the order of reference. The plaintiff opposed the motion, and an order was made opening the default on payment of costs, but allowing the order of reference to stand as if made after issue joined. A trial was then had before the referee, who found in favor of the defendant. Upon confirming the referee’s report, the court said, page 161: “ It will not do for a party to lie by, taking the chances of a favorable decision before a forum in which he acquiesces, and then, when an adverse result comes, seek to defeat that result unless the proceedings are entirely void. Such is not the case here.” The motion should, therefore, be denied, but without "costs.

Motion denied, without costs.  