
    Henry Zeimer, Respondent, v. Herman Stearns et al., Appellants.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    A District Court justice has power, within eight days after the conclusion of a trial before him, to direct a trial by jury.
    A refusal to grant an application for removal of the cause cannot be held to be prejudicial error where the record fails to show that such application was made after issue was joined.
    Appeal from a judgment rendered upon the verdict of a jury in the District Court in the city of New York for the ninth judicial district in favor of the plaintiff.
    
      Henry Manne, for appellants.
    
      Hermam, Fox, for respondent.
   JBischoff, J.

In this' action plaintiff claimed and recovered the sum of $100 as compensation under a,contract whereby,, for such consideration, he had agreed to obtain a lease of a. certain portion of a store for the defendants.

The evidence which appears in support of the judgment establishes the fact that the contract in question had actually been entered into, and that there had been due performance upon the plaintiff’s part.. It was also shown that the defendants had refused the plaintiff’s demand for payment under the agreement.

Upon, the mere conflict of evidence presented by the defendants’ denial of the.plaintiff’s testimony the jury’s verdict must conclude under the well-settled rule; and the record would not justify our holding that the defendants were prejudiced by the determination reached upon the facts.

By .stipulation of counsel we are advised that the justice, after having heard the evidence adduced, and within eight days following the termination of a former trial of the action,, orderéd a trial before a jury, the record of which is the one submitted to us. Appellants’ contention that -the justice’s direction of the jury trial was unwarranted must be due to some oversight. Section 13J2 of th.e Consolidation Act (Chap. 410, Laws 1882, ■ as amended by chap. 3t8j Laws ■ 1891). expressly authorizes the practice followed by the court below.

We are further advised -by the stipulation that the justice refused an application on the defendants’ part for removal of the cause to the Court of Common Pleas for trial, and that the ground of such refusal was that the damage claimed did not exceed $100, the plaintiff's claim being for .$100, “ with interest.” The stipulation and the record, however, are silent with reference to everything tending to show that the application was made after issue was joined, as required by the Code of Civil Procedure (§ 3216), and section 128J of the Consolidation Act (Chap. 410, Laws 1882). Hence, assuming that the ground assigned for the justice’s refusal was error, we are without facts from whiclj to conclude that the application for such removal should have been granted, and so that the error was prejudicial to the defendants, c Judgment affirmed, with costs.

Gíegerióh, J.,. concurs.

Judgment affirmed, with costs.  