The action is for rent. The defense is a constructive eviction. Section 231 of the Municipal Court Act provides that, “ at any time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of the issue a jury trial is waived.” In the case at bar, when the issues' under the original pleadings were joined, no demand for a jury trial was made. Plaintiff, however, obtained leave to amend the summons' and complaint; and, when the answer to the amended complaint was filed and issues under the amended pleadings thus joined, defendant demanded a jury trial, which motion was denied. The omission of defendant to demand a jury trial upon the joining of issues under the original pleadings was not a waiver of his right to such trial upon the joining of issues under the amended pleadings, which are in writing. The trial resulted in a judgment for
MacLean and Dayton, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.