Shelkowski v. Constable

Appeal from an order of the Supreme Court at Special Term, entered February 18, 1946, in Bronx County, which granted a motion by plaintiff for an order transferring a note of issue filed in New York County to Bronx County, permitting plaintiff to file a jury demand nunc pro tunc, and directing the calendar clerk of Trial Term, Bronx County, to place the case on the General Calendar of Trial Term, Bronx County, for the March, 1946, term.

The defendant has appealed from an order granting the motion of plaintiff to file nunc pro tunc a demand for a jury and transferring to Bronx County a note of issue filed in New York County.

The facts in this record do not justify the granting of plaintiff’s motion. The claimed illness confining plaintiff’s attorney to his home is not in accord with his reported appearances elsewhere. The note of issue was mailed by the attorney himself. No jury fee was paid. The desire for a jury trial appears to be an afterthought.

The order should be ■ reversed, with $20 costs and disbursements, and the motion denied.

Martin, P. J., Townley and Dore, JJ., concur in Per Curiam opinion; Glennon and Callahan, JJ., dissent and vote to affirm.

Order reversed, with $20 costs and disbursements, and the motion denied. [See post, p. 822.]