#### James MacNaughton, App’lt, *v.*Ralph R. Osgood *et al.,*Resp’ts.1

*(Court of Appeals, Second Division,*

*Filed June 18, 1889.)*

1. Trials—When neither party entitled to jury trial—When deter*MINATION OF JURY NOT CONTROLLING-CODE ClV. PRO., §§ 968, 969, 971.

Where the action is one triable by the court, neither party is entitled to a trial by a jury, but questions of fact arising upon the issues may be-directed by the court to be tried by a jury. The determination of the jury upon such questions is not however controlling on the court upon the facts involved in the issue.

2. Same—When decision must be in writing—Exceptions—Code Cry. Pro., §§ 994-1022.

For the purpose of a review upon the merits, there must be a decision in. writing, in which the facts found and the conclusions of law must be-separately staled, and such decision must direct judgment to be entered, thereon, and appropriate exceptions must be taken to such conclusion of the court, as provided by Code Civil Procedure, section 994.

3. Same—When exceptions cannot be heard at general term—Code Civ. Pro., § 1000.

There is no authority to direct exceptions in a case, triable by the court, to be heard in the first instance at the general term. That proceeding is by Code Civil Procedure, § 1000, limited to a case triable by a jury.

4. Same—Motion for new trial—Where made—When complaint cannot be dismissed—Code Civ. Pro., §§ 999, 1000, 1001.

A motion for a new trial, except in the cases specified in Code Civil Pro* cepure, sections 999, 1000, 1001, must, in the first instance, be made at the-special term; and in an equity action the complaint cannot be dismissed on, a trial of questions of fact by the jury. A verdict must be rendered upon, all the questions submitted, and the case afterwards determined by the-court.

Appeal from judgment supreme court, general term,, third department, affirming a judgment.

*G. L. Stedman,*for app’lt; *George Richards,*for resp’ts;. *Osgood, Blessing & Howe, Éselc Cowen &*D. *W.*Richards, for other resp’ts.

1

 Reversing 3 N. Y. State Rep., 795.

Brown, J.

This action was brought by the plaintiff to-obtain a judgment restraining the defendants, who are officers of the Osgood Dredge Company, from paying to them*532selves salaries, voted to themselves, and to compel them to .refund to the corporation amounts paid as salaries before the commencement of the action.

After setting forth the facts which it is claimed give rise to the cause of action, the complaint demands judgment as follows; “Wherefore the plaintiff demands judgment that the defendants Osgood, Howe and Blessing, and each of them, be enjoined and restrained from paying to the said Howe $400 per month as salary, to the said Osgood $200 per month as salary, and that the said Howe and Osgood respectively, repay to the said Osgood Dredge Company the *moneys*already received by them * * * and that the •acts of said trustees fixing the salaries of said Osgood and Howe be declared fraudulent and in violation of their duties, and for such other and further relief as may be just and proper.” The defendants all answered. The record before the court shows that the action was brought to trial at the circuit in the city of Albany, January 22, 1880.

At the close of the testimony, the defendants’ counsel moved to dismiss the complaint, and the plaintiff asked to go to the jury upon certain questions of fact. The latter motion was denied and the complaint dismissed; to all of which, plaintiff excepted.

The court then ordered the exceptions to be heard in the ■first instance at the general term, and stayed proceedings meanwhile.

The case was heard at the general term and decided in May, 1886, by which decision the exceptions were overruled and the plaintiff’s motion for a new trial was denied, and an order entered accordingly.

A judgment then appears to have been entered, which recites the trial, the direction for the dismissal of the complaint, and the exceptions thereto, the order that the exceptions be heard in the first instance at the general term, the motion for a new trial upon such exceptions, and the decision thereon of the general term, and adjudges that the complaint be dismissed and that the defendants recover of the plaintiff their costs and disbursements.

From the judgment so entered the plaintiff appealed to this court specifying in his notice of appeal his intention to bring up for review the order of the general term denying the motion for a new trial.

The action was one triable by the court, and neither party was entitled to a trial by a jury. Code Civ. Pro., §§ 968, 969. Questions of fact arising upon the issués might, however, have been directed by the court to be tried by a jury. Section 971. The determination of the jury upon such •questions is not, however, controlling on the court, upon the .facts involved in the issue.

Prior to the Code the practice was to award a feigned issue and take the verdict of a jury thereon to aid the *533chancellor, and, though differing in form, under the Code the practice is substantially the same. *Vermilyea*v. *Palmer,*52 N. Y., 471.

For like purposes, issue may be framed and sent to the circuit for trial by a jury, and the court, upon further hearing of the case, may adopt the findings of the jury upon the facts, or may modify, or reject them altogether.

The action must be brought to a hearing before the court, and the court’s decision must be made in writing in the same manner as iE there had been no verdict of the jury on. the issues. *Acker*v. *Leland,*109 N. Y., 5; 14 N. Y. State Rep., 23; *Carroll*v. *Deimel,*95 N. Y., 252.

For the purposes of a review upon the merits there must be a decision in writing, in which the facts found and the conclusion of law must be separately stated, and such decision must direct judgment to be entered thereupon. Code, § 1022. And appropriate exceptions must be taken to such conclusion of the court in the manner provided by statute. Section 994.

In this case the record before us does not present any question for review upon the merits. No question of fact was directed to be tried by a jury, and none were submitted to the jury that was impanelled at the circuit.

If _we regard that proceeding as a trial by the court, no decision has ever been made in the manner directed by the Code. There was no authority to direct exceptions, in a case triable by the court, to be heard in the first instance at the general term. That proceeding is limited to a case triable by a jury. Section 1000.

• A motion for a new trial, except in the cases specified in section 999, 1000 and 1001 of the Code, must, in the first instance, be made at the special term. And in an equity action, the complaint cannot be dismissed on a trial of questions of fact by the jury. A verdict must be rendered upon all the questions submitted, and the case afterwards determined by the court. *Moore*v. *Met. Nat. Bank,*55 N. Y., 41; *Birdsall*v. *Patterson,*Com. of App., 51 N. Y., 43.

The proceedings contained in the record were, therefore, irregular and unauthorized. There had been no trial in the manner provided bylaw, and no decision appears in the case, and there is nothing to support the judgment appealed from, and no question upon the merits of the case is before this court.

The judgment must be reversed, without costs, with leave to the parties to proceed *de nova*at the special term, in such manner as they shall be advised.

All concur, except Parker, J., not sitting.