When it appears in the course of a trial by the court that the relief required, although not originally demanded by a party, entitles the adverse party to a trial by jury of certain issues of fact, the court shall give the adverse party an opportunity to demand a jury trial of such issues. Failure to make such demand within the time limited by the court shall be deemed a waiver of the right to trial by jury. Upon such demand, the court shall order a jury trial of any issues of fact which are required to be tried by jury.
§ 4103.Issues triable by a jury revealed at trial; demand and waiver of trial by jury
Article 41. Trial by a Jury · Last amended 1963 · Last verified July 21, 2026
In one sentenceSection 4103 gives a party the chance to demand a jury mid-trial when it turns out, once the evidence comes in, that the relief the case calls for entitles them to a jury on issues no one originally sought to have a jury decide.
Full Text of CPLR 4103
Plain-English Summary
Some cases start out looking like they belong entirely to the judge, an equity case with no jury demand in sight, and then take a turn once the proof comes in. Section 4103 covers that turn. If it becomes clear during a bench trial that the relief the case calls for gives the adverse party a right to a jury on certain factual issues, even though nobody demanded one when the case began, the court has to give that party a chance to ask for a jury on those issues.
The chance comes with a clock. The court sets the time to make the demand, and letting that window pass counts as a waiver of the jury right on those issues, not an oversight the court has to fix later. If the party does demand a jury in time, the court must order a jury trial of whatever issues of fact are legally required to be tried that way.
The section spares a case from being thrown out just because the proof shifted the legal footing under it. Rather than dismissing the complaint or ordering a full new trial from the start, it lets the case continue with the new procedural track built in.
Frequently Asked Questions
What happens if my case turns out to require a jury partway through a bench trial?
The court must give the adverse party a chance to demand a jury trial of the issues affected, even though no jury was originally sought.
How much time do I get to demand a jury under section 4103?
Whatever time the court sets; the court controls the deadline for making the demand once the issue comes up at trial.
What if I miss the deadline the court sets to demand a jury?
Missing it is deemed a waiver of the right to a jury trial on those issues, and the bench trial continues.
Does the whole case restart if I successfully demand a jury under this section?
No, the court orders a jury trial only of the issues of fact required to be tried by jury, not a complete do-over of the case.
Why would this situation come up in a New York lawsuit?
It typically arises when a plaintiff sought equitable relief but the evidence at trial shows only legal relief, like money damages, is available, which can trigger a jury right nobody anticipated at the outset.
Advisory Committee Notes
This section is new. It is based upon a statute proposed by the Judicial Council. 20 NY Jud Council Rep 293, 298 (1954). Where it has appeared in the course of trial that a plaintiff who sought equitable relief is entitled to legal relief only, the courts upon a number of occasions have dismissed the complaint. In other cases, a new trial has been ordered or money damages awarded. See The Right to Trial by Jury, at page 570, infra.
This section is designed to avoid the dismissal of the complaint in this situation. The defendant, who may be genuinely surprised by the change in the nature of the action, should have an opportunity to claim a jury trial. However, he should not be given power to delay the action and accordingly is required promptly to exercise the opportunity offered to him by the court. If he does not demand a jury, the court can decide the issues without ordering a new trial. Cf. CPLR § 3025(a).
The defendant is required to exercise his opportunity within the time limited by the court or he is deemed to have waived the right to jury trial. Waiver would permit the court to continue with the case without the necessity of retaking evidence already received. Since the defendant would be saved the expense of a new trial, the inducement to waive would be substantial.
While this section adopts the reasoning of those courts that refuse to infer from the act of going to trial before the court a waiver by the defendant of the right to jury trial, the wording of the rule in terms of the right of the adverse party in effect sanctions the former case law that a plaintiff who has asked for equitable relief has waived his right to trial by jury of legal issues appearing at the trial. See Vincent v Cooperman, 283 App Div 812, 128 NYS2d 634 (2d Dep’t 1954). Although the result reached under this section—a new trial when demanded by defendant—may appear cumbersome, it has been pointed out that it is less so than the result which would have occurred prior to the merger of law and equity. See Pike & Fischer, Pleadings and Jury Rights in the New Federal Procedure, 88 U Pa L Rev 645 (1940). Then, the action would have been dismissed, and, if the statutes of limitation had not run, the plaintiff would have had to begin again at law.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: jury demand mid-trial New Yorksurprise jury right at trial New Yorkjury trial when equitable relief becomes legal reliefunexpected jury right New York civil trial