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Cases Under the New York Code of Civil Procedure

Cases Under the New York Code of Civil Procedure


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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1913 edition. Excerpt: ...no necessary connection with the plaintiff's demand in' suit. It would, moreover, permit him to do this after selecting a different court for the trial of his issue, and evade that trial at the moment it was to commence by the expression of his mere wish to go into a different forum, thus putting his adversary at defiance and interrupting the court in the transaction of business which he himself had in a formal manner brought before it. It is to be conceded that the mode of trial of the issue tendered by his counterclaim might be the same as if it had arisen in an action. But a counterclaim in an equity suit is not a case where a right to a jury trial existed at common law. (Chapman V. Robertson, 6 Paige, 627;-Jennings v. Webster, 8 id. 503.) It is not secured by the Constitution. It is not to be had as of course, for the action is not within section 970 of the Code (supra), the complaint demanding judgment other than for a sum of money. It is conferred by statute ( 974), and so is within section 970 (supra), which requires an application upon notice to the court for an order directing the questions arising upon the issues to be stated for trial. No such application was made. More'over, the right given by section 974 attached, when by the reply issue was joined upon the allegations of the answer. The subsequent step taken by the defendant in noticing the issues so joined for trial, at a court of which a jury forms no part, was inconsistent with any intent to take advantage of the right to a jury trial. That right could be waived, and by this notice the defendant must be held to have consented to a trial before the court and without a jury. Neither the Code nor the cases cited by the appellant are opposed to this view. The Code...


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Product Details
  • ISBN-13: 9781152185449
  • Publisher: Rarebooksclub.com
  • Publisher Imprint: Rarebooksclub.com
  • Height: 246 mm
  • No of Pages: 188
  • Spine Width: 10 mm
  • Width: 189 mm
  • ISBN-10: 1152185446
  • Publisher Date: 01 Apr 2013
  • Binding: Paperback
  • Language: English
  • Returnable: N
  • Weight: 345 gr


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