9 N.Y.S. 583 | N.Y. Sup. Ct. | 1890
The issue of adultery only was sent to the jury on 10 questions, framed upon as many specific allegations of the complaint. The jury answered two of the questions in the affirmative, and the remainder in the negative, the latter under direction of the court. Thereupon the court granted time to the defendant to make a case and exceptions, and ordered the same to be heard at the general term in the first instance. This was in accordance with section 1003 of the Code of Civil Procedure, which extends the provisions of section 1000 to cases in which there has been a trial by jury “of one or more specific questions of fact arising upon the issues in an action triable by the court.” An action of divorce is triable by the court, except that upon the application of either party the court must, and, upon its own motion, it may, direct the trial by a jury of the issue of adultery. Code Civil Proc. § 1757. The order for the hearing of the exceptions in this case, at general term, in the first instance, was therefore properly made, and the defendant’s exceptions will be allowed or disallowed, and a new trial granted or refused, in the same manner and with the same effect as if the exceptions had been heard on a motion for a new trial at special term, under section 999, before the same judge who presided at the trial. But the case is not one in which the court, either at general or special term, may disregard the verdict of the jury, and either find the facts according to its own judgment or take further evidence, as may be done in equity cases generally. Learned v. Tillotson, 97 N. Y. 1-6. In the latter class of cases the verdict is “simply advisory;” “is only a part of the evidence, and if, for any reason, it is deemed unauthorized, it can be rejected, and is not obligatory upon the court. ” Id. 6. But an action of divorce is within the terms of section 970 of the Code, viz., an action
Macombeb, J., concurs; Coblett, J., not voting.