
    Frederick P. Wilcox, Appellant, v. Kathchen N. Wilcox, Respondent.
    First Department,
    December 21, 1906.
    Husband and wife — divorce — when defendant entitled to jury trial — effect of service of notice for trial at'Special Term — issue of insanity . of defendant not proper for jury.
    When in an action for divorce the alleged adultery has been put in issue by the answer the defendant has a right to a jury trial. There is no waiver of this right on the part of the defendant by serving a notice for trial at Special Term after the plaintiff had served a similar notice. The sending of the issue to the jury still leaves the trial at Special Term.
    Rule 31 of the General Rules of Practice, providing that in certain instances a party desiring a jury trial shall give notice of special motion therefor, does not apply, as the right to a jury trial on the issue of adultery is given by section 1757 of the Code of Civil Procedure.
    Where, however, the defendant sets out insanity by reason whereof she was incapable of knowing the nature of the acts committed by her, the issue of insanity should not be sent to a jury, but should be determined, by the court after the verdict on the issue of adultery.
    Appeal by the plaintiff, Frederick P. Wilcox, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1906, granting the defendant’s motion to frame issues for trial' by a jury.
    
      Albert W. Hansom, for the appellant.
    
      Frank A. Butler, for the respondent.
   McLaughlin, J.:

This action is brought to procure a judgment of divorce on statutory grounds. The answer denies'the adultery'alleged, and sets up as. a separate and distinct defense that at the time of the commission of the alleged acts of adultery and for some time prior :and subsequent thereto the defendant was insane and by reason thereof incapable of knowing the nature or quality of acts committed by her.

After issue had been joined the plaintiff noticed the cause for trial at Special Term and defendant then served a counter notice. The case was reached in its regular order upon the day calendar for trial'- at the J une term, and then adjourned until -the October term pénding the return of a commission to take testimony, issued at the instance of the defendant. Before the cause was again reached for trial the defendant'made a motion to frame issues for trial, and an order was entered directing that the question of defendant’s adultery and her insanity be se'nt to a jury for trial. It is from this order the plaintiff appeals.

The act of adultery having been put in issue .by the answer, the defendant had a right, if she so desired, to have that question determined by a jury! ' The Code so provides. (Code Civ. Proc. § 1757.) But it is .said the defendant waived this right by .noticing the cause for trial at Special Term. This does not follow. The only thing which the defendant did, after the plaintiff had served a notice for trial at Special Term, was to serve a similar notice. This did not prevent her insisting, before the cause had been actually moved for trial, that the issue of adultery be sent to a jury.. She had done nothing which could in any way be considered as having given up or waived this right. The sending of this issue to a jury still leaves the trial at Special Term. After the issue of adultery has been determined and the finding of the jury thereon been submitted to the-Special Term, the other issues will then, if necessary, be disposed of by the trial of the action.

Rule 31 of the General Rules of Practice does not apply. (Conderman v. Conderman, 44 Hun, 181.) This rule provides that in cases where the trial of issues of fact is not provided for by the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings that the whole issue or any specific questions of fact involved therein be tried by a jury. But the trial of the issue of adultery is provided for by the section of the Code above cited.

I do not think, however, that the defendant is entitled to have the issue as to insanity submitted to a jury. There is no statute giving her such right, and the practice of submitting any other question than that of adultery was condemned by this court in Bush v. Bush (103 App. Div. 588). This is an issue to be determined by the court, if necessary, after the rendition of the verdict upon the issue of adultery.

The order appealed from,.therefore, should be modified by striking out that portion of it designated “ Third,” and as so modified affirmed, without costs to either party.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order modified by striking out the portion designated “ Third,” and as so modified affirmed, without costs. Order filed.  