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DOWNING v. DOWNING

32 A.D.2d 350 (1969)

Pilar Downing, Respondent, v. Vincent Downing, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

July 15, 1969.

Attorney(s) appearing for the Case

Abraham Hornstein of counsel (Lawrence R. Condon, attorney), for appellant.

Thomas R. Farrell of counsel (Doris Carroll with him on the brief; Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, attorneys), for respondent.

TILZER and MARKEWICH, JJ., concur with STEUER, J.; McGIVERN, J., dissents in opinion, in which CAPOZZOLI, J. P., concurs.

STEUER, J.

The instant appeal calls for the interpretation of CPLR 4102. We say this with all due humility in view of the absolute fiat in the dissent that there is simply no room for interpretation.

We start with the unequivocal statement of the Court of Appeals, which as far as we know has never been questioned: "the right to a trial by jury is a personal right which must be timely asserted." (Matter...

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