Elmore v. New York City Railway Co.

The statute does not require both parties to demand a jury in order to secure the rights of both thereto. The record herein does not show that the plaintiff waived a jury at any stage of the case. Under the circumstances disclosed it was error for the learned justice to proceed to trial without a jury. The legal rights of the parties are correctly stated in Sherwood v. N. Y. Telephone Co., 46 Misc. Rep. 102.

Gildersleeve and Dowling, JJ., concur; Dugro, J., taking no part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.