delivered the opinion of the Court:

In Fischer v. Munsey Trust Co. 44 App. D. C. 212, we ruled that where the affidavits in support of and in opposition to a motion to quash service of process raise an issue of fact, and the parties do not waive a trial by jury, the motion necessarily must be denied, and that upon proper plea the issue should be determined by a jury. The ruling of the learned trial justice in this case was made before our decision in the Fisher Case, and evidently proceeded upon the theory that such issues should be determined by the court without the interposition of a jury, irrespective of the attitude of the parties.

That a sharp issue of fact was raised by the affidavits filed in this case cannot be doubted. This is not denied by counsel for appellee, but they insist that appellant waived his right to a jury. We are unable to accept this contention. The most that can be said is that appellant was willing to try the issue of fact before the court, providing he could have such a hearing as would be had before a' jury; in other words, as specifically stated in his motion, providing he could introduce oral testimony and cross-examine witnesses. This right he insisted upon throughout, and it was denied him. It cannot reasonably be said, therefore, that he waived his rights.

Wo are of opinion, however, that a ruling on the question involved by appellant’s motion for service in New York is premature. That question can be determined more intelligently after the issue of fact raised by the affidavits is settled.

The judgment must be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.