(dissenting). As I interpret subdivision 5 of section 426 of the Civil Practice Act, a clear distinction is made *309between the plaintiff and a defendant. Plaintiff by failing to serve with his notice of trial a written demand for a jury clearly waives his right to such a trial. The section further provides: “ Any other party to the action may, within twenty days after the service of notice of trial upon him, or with his own notice of trial, serve upon the attorneys for all other parties to the action a notice demanding a jury trial * * (Italics mine.)
The defendant’s demand, having been served within the twenty days’ period, was timely.
As the last sentence of subdivision 5 provides that the party first demanding a jury trial shall pay the jury fees, a legislative intent may properly be inferred that a party other than the plaintiff should have this two-fold opportunity. In ordinary circumstances the plaintiff having instituted the action should have the burden of the calendar and jury fees.
I, therefore, dissent and vote for affirmance.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and the clerk directed to place the case on the non-jury calendar.