May 1, 1939.
Morris Stamper and Philip Hunter, for the plaintiff.
Zalkin Cohen, for the defendant.
Motion to strike this case from the jury calendar and place it upon the non-jury calendar. I am satisfied that plaintiff's attorney made an excusable error in not filing his demand for a jury trial. He noted that demand upon his note of issue, but, due to inadvertence, failed to file his separate demand. He endeavored to correct his mistake the following day. He should not be so severely punished as to deprive his client of a jury trial by reason of such an insignificant lapse. This court has power to relieve him (See Civ. Prac. Act, § 105) and has done so. (See New York Investors, Inc., v. Laurelton Homes, Inc., 230 A.D. 712.) Motion denied.