#### Alberta P. Tracy and Robert C. Davey, as Executors, etc., of William L. Evans, Deceased, Plaintiffs, *v.*Annie Dolan et al., Executors, and Freelove L. O’Brien, Executrix, of Peter T. O’Brien, Deceased, Defendants.

(Supreme Court, New York Special Term,

March, 1900.)

Partition — Jury trial of issues — Powers of Trial and of Special Terms.

Where, under an order in partition that the “ issues as made by the pleadings be tried by jury ”, three successive trials are had at the Trial Term and all are limited to a single issue of fact, the parties must by their conduct be deemed to have agreed that no other issue of fact is to be determined by the jury, and therefore a motion made by a defeated defendant to set aside a verdict, reached only on the third trial, for the reason that all the issues made by the pleadings were not determined at the Trial Term as contemplated by the order, should be denied; and all further proceedings in the action must be remitted to the Special Term.

The Trial Term has, in such case, no power to make findings upon undisputed questions of fact.

Motion to set aside the verdict and to declare a mistrial, for the reason that all the issues raised by the pleadings were not determined.

Shipman, Larocque *&*Ohoate, for plaintiffs.

Fettretch, Silkman *&*Seybel, for defendant Dolan.

Leventritt, J.

This is an action in equity in which, under an order that the *“*issues as made by the pleadings be tried by jury,” proceedings were had at the Trial Term. Three separate trials were had,' at each of which but a single question of fact was submitted to the jury; the first two resulted in a disagreement, while the third eventuated in a verdict favorable to the plaintiffs. While upon the face of the pleadings various issues'of fact are raised, the uncontroverted evidence on the last trial, as upon the former trials, eliminated all but the one, concerning which a sealed verdict was *7rendered. After the jury had separated and when they assembled in court, where their verdict was received and recorded, the learned justice presiding at the trial, upon the application of the plaintiffs, -directed findings upon the undisputed questions. A motion was thereupon made by the defendant at the Special Term to vacate these additional findings. The motion was granted on the ground that the justice was without authority to make or direct such findings. A further motion is now made to set aside the verdict and to declare a mistrial for the reason that all the issues raised by the pleadings were not determined. I am of the opinion that this motion should be denied. The objecting defendant, by her conduct on each of the trials, conceded that the evidence reduced the issues determinable by the jury to a single one, and accordingly that one was on each occasion alone submitted. There was at no time any request to submit any other question, nor any exception ■or protest that the issues had been improperly narrowed, or that the course of any of the trials was violative of the terms or spirit •of the order. There was not merely acquiescence by the defendant in the procedure adopted; on the second trial her counsel, at the •court’s suggestion, formulated what was to be passed upon by the jury and limited it to the question beyond which no finding was requested at any of the trials. Section 1544 of the Code, applicable to the trial of issues of fact in partition actions, is permissive. The parties could certainly have restricted the original order directing a jury trial of the pleaded issues to the one actually determined. ■Surely then, by their consent, express or implied, on the trial, could they similarly restrict them. The counsel for the defendant emphasized this consent on the last trial by objecting that the learned justice had no authority to make or direct the additional findings, urging “that the matter is one which belongs to the Special Term, to which application for final judgment or any judgment must be made, this being an equity case.” I am in •accord with this view. The unequivocal position adopted throughout the entire litigation strengthens the conclusion that all further proceedings should be remitted to the Special Term.

Motion denied, with ten dollars costs.