February 6, 1914.
George W. Bristol, for the appellant.
Franklin A. Coles, for the respondent.
This is an action for a divorce. Issue was joined on the charge of adultery. The cause was noticed for trial at a Special Term of the court. The defendant applied, upon notice to the plaintiff, for an order directing the questions arising on the issue to be plainly and distinctly stated for trial by a jury. (Code Civ. Proc. §§ 970, 1757.) The order from which the appeal is taken granted this relief.
The defendant did not waive her right to a trial by jury in any of the modes prescribed by section 1009 of the Code of Civil Procedure. She did serve a cross notice of trial for Special Term. In an action of this character that practice was proper and constituted no waiver. ( Wilcox v. Wilcox, 116 App. Div. 423.)
It is conceded that the defendant did not make the application within twenty days after issue was joined. The validity of the order is challenged. The ground of the challenge is rule 31 of the General Rules of Practice, which inter alia embraces the following provision: "In all actions where either party is entitled to have an issue or issues of fact settled for trial by a jury, either as a matter of right or by leave of the court, if either party desires such a trial, the party must within twenty days after issue joined, give notice of motion that all the issues or one or more specific issues be so tried. If such motion is not made within such time, the right to a trial by jury is waived."
The rule was amended in this particular in April, 1910, to take effect September 1, 1910. The rule, prior to the amendment, read: "In cases where the trial of issues of fact is not provided for by the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue or any specific questions of fact involved therein, be tried by a jury."
As it was then written it was held not to have the effect of qualifying the right of a party to make an application and have it granted in an action for a divorce, where the right to a trial by jury of the issue of adultery exists. ( Conderman v. Conderman, 44 Hun, 181.) The question now to be determined is: Does a failure to observe the rule as amended carry with it a waiver of a party's constitutional right to a trial by jury of the issue of adultery in an action for a divorce? Our answer is, it does not. The reasons for our conclusion are: The Constitution reads: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law." (Art. 1, § 2.) The trial by jury of the issue of adultery was used before the adoption of the Constitution. ( Conderman v. Conderman, supra.)
The modes by which a jury trial may be waived have been prescribed by law. (Code Civ. Proc. § 1009.) The mode prescribed by the rule is not expressed in the statute. A rule of practice may not be inconsistent with the Code of Civil Procedure. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 94.) When the law-making authority expressly enumerates the modes by which an object may be accomplished, a body to which it delegates its power, with an inhibition against exercising it inconsistently with written law, may not alter the provision by increasing the number of modes. In Glenney v. Stedwell ( 64 N.Y. 120) the court said: "It is enough to say that the rule cannot alter the statute ( Rice v. Ehele, 55 N.Y. 518), and the latter must be interpreted and followed."
The rule as amended was unauthorized in so far as it was an attempt to limit the constitutional right to a trial by jury of the issue of adultery in an action for divorce by prescribing a mode of waiver not included in a statutory provision legislating upon the same subject-matter.
Since this opinion was written we have read the prevailing and dissenting opinions in Cohen v. Cohen ( 160 App. Div. 240), recently decided by the Appellate Division in the First Department. By a close vote in that court the views expressed herein are not approved. We are, nevertheless, constrained to adhere to our determination.
I advise affirmance of the order, with ten dollars costs and disbursements.
JENKS, P.J., BURR, THOMAS and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.