Opinion
March 22, 1948.
In a summary proceeding to recover possession of a store, based upon an alleged holding over by the tenant after the expiration of a written lease, tenant appeals from an order of the City Court of Mount Vernon striking the proceeding from the jury calendar and restoring the same to the trial calendar for trial without a jury. The lease contained a clause waiving the tenant's right to a trial by jury "in any summary proceedings hereafter instituted by the Landlord against the Tenant in respect to the demised premises * * *." As a defense in the proceeding, and in opposition to the instant motion, the tenant alleged that it was in possession under a new oral lease which was made during the term of the written lease, to take effect upon its expiration, and which was silent on the subject of waiving a jury trial. Order affirmed, with $10 costs and disbursements. The summary proceeding was based upon the written lease and the landlord had the right to invoke the jury-waiver clause contained therein. It could not be deprived of that right by the tenant's interposition of a plea alleging that he was in possession under a new lease. ( Berdam Holding Corp. v. Lieberman, 21 N.Y.S.2d 626 [not officially published].) As was said in O'Beirne v. Bullis ( 158 N.Y. 466, 469): "The mode of trial was to be determined by the cause of action set up in the complaint." Lewis, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.