Bronson v. McCann Erickson, Inc.

An examination of the papers on appeal in the case of Community State Corporation v. Wishnetsky Co., Inc., discloses that the demand for a jury trial, made six months after the time had expired, was based exclusively on the ground that such a demand had been inadvertently omitted. In other words, it was not claimed that there was any complicated or intricate question or issue of fact which in the judgment of the court might have warranted a trial by jury in preference to a non-jury trial. Nevertheless in that case the Appellate Term affirmed the order granting the defendant’s motion for a jury trial and overruled the plaintiff’s contention that mere inadvertence or oversight, even though pardonable, was not a ground upon which to extend to the defendant the right and privilege of securing a jury, after the time prescribed by the code had long expired. A contrary view found expression in the dissenting opinion of Judge Callahan. In the face of this ruling, the plaintiff is relieved of the inadvertent omission to duly file the demand for a jury, and the motion is granted directing the clerk of the court to retain the action on the jury calendar.