#### Frederick Ulbricht, Respondent, *v.*Alida S. Ulbricht, Appellant.

*Divorce*— right *of the defendant to- a jury trial*— plaintiff *should move to frame issues*■ — ■ *laches impairing the right to alimony and counsel fees.*

In an action for divorce, brought upon the ground of adultery, a defendant ‘is entitled as a matter of right to a trial by a jury of such, issues, and can only be deprived of such right in the manner provided by the Code of Civil Procedure.

A defendant in such an action is not bound to move the court that issues be framed in order that they may be tried by a jury; such duty rests with the plaintiff, and *laches*on the part of a defendant, in so moving, furnishes no reason for depriving such defendant of the benefit of an order made allowing alimony and counsel fees.

Appeal by tlie defendant, Alida S. Ulbricht, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of June, 1895, vacating an order of June 20, 1895, made on the hearing of a motion that the plaintiff be relieved from the payment of alimony under an order of December 11, 1895. The order of June 20, 1895, appealed from provided as follows:

*“*Ordered, that the said motion be and the same hereby is in all things granted, and that the order heretofore and on the 11th day of December, 1891, made herein, requiring the plaintiff to pay alimony until the trial of this action, be and the same hereby is vacated and set aside, unless the defendant shall, within two days after the entry of this order and service of a copy thereof, with notice of entry upon her attorneys, cause and procure to be executed by her said attorneys, and delivered to the plaintiff’s attorney, a stipulation in writing, stipulating that all the issues herein be referred to a referee, to be named by the court, to hear and determine the same, and further stipulating that the defendant will accept one week’s notice of trial before said referee, and that the order of reference may provide that the trial shall proceed before said referee in his discretion from day to day.”

*Samuel Walker,*for appellant.

*William S. Bronk,*for respondent.

*480Per Curiam:

Tliis action was brought for a divorce on the ground of adultery. The defendant was entitled as matter of right to a trial by jury of the issue of adultery; and she could only be deprived of that right in the manner provided for by the Code of Civil Procedure. She was not obligated to move the court for the purpose of framing the issues in order that they might be put in position to be tried by a jury. This was the plaintiff’s duty if he desired to have his action tried; and the fact that the defendant undertook that duty at a late day, as the plaintiff claims, is no reason for depriving her of the order which had been made in her favor for alimony and counsel fees. If there was any *laches*it was the *laches*of the plaintiff in not prosecuting his action diligently and getting it into a condition of readiness for trial.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.