30 N.Y.S. 580 | N.Y. Sup. Ct. | 1894
Section 970 of the Code of Civil Procedure, which provides when a party, as a matter of right, is entitled to an order stating specific questions of fact for trial by jury, and providing that the findings of the jury upon each question so stated are conclusive in the action unless the verdict is set aside or a new trial is granted, was by chapter 208 of the Laws of 1891 amended, by .adding at the end thereof the following:
■‘Where one or more questions arise on the pleadings as to the value of property or as to the damages which a party may be entitled to recover, either party may apply upon notice, at any time, to the court for an order directing such questions to be stated for trial by jury.”
It was thereafter held by the local courts in a number of cases that it was the right of the defendants in suits similar in character to this to have uuestions relating to the value of the property,
“It appearing to the satisfaction of the court that certain questions arise on tlie pleadings as to the value of property and as to the damages which the plaintiff may be entitled to recover in said action, it is, pursuant to statute in such case made and provided, and on motion of Messrs. Davies, Short & Townsend, attorneys for defendants, ordered that the said questions be, and they hereby are, stated for trial by jury as follows:”
After stating the Questions, the order further directed:
“That this cause, for the purpose of determining the said questions so stated, be placed upon the calendar of the circuit court, part II., to be held in and for the city and county of New York, at the county courthouse in the city of Now York, for December, 1891.”
From this order no appeal has ever been taken, and in May, 1892, the questions came on for trial before the court and jury. No objection was made to the court’s proceeding with the trial as directed in the order, and the parties proceeded as if the method of trial provided by the order was entirely regular. It resulted in a. verdict not at all satisfactory to the plaintiff, whose counsel promptly made a motion.upon the minutes of the court that it be set aside, which was denied. Subsequently, the suit came on for trial at special term, when the defendants caused the facts relating to the making of the order, the trial, and the verdict, to appear upon the record, at the same time insisting upon the conclusiveness of the verdict until lawfully set aside. The court refused to so rule, and, ignoring the verdict, rendered a judgment in hostility to it.
It is the rule in the trial of equity suits, where questions of fact are submitted to a jury, to follow the findings of the jury or not, as the conscience of the court may prompt, the verdict being treated as advisory. The learned trial court thought this rule applicable to the situation.presented on this trial; and, reaching the conclusion that the jury had erred in their findings of fact, it refused to follow them, and, instead, made such findings as it thought the evidence reauired. Whether it was a mistake to treat the verdict rendered in this suit as a mere recommendation to the court, which it could follow or disregard, presents the question which we shall consider. Before the trial at special term, which took place in March. 1892. the court of appeals decided that the amendment to section 970 did not apply to suits of this character. Shepard v. Railway Co., 131 N. Y. 215, 30 N. E. 187. Thus, it was established that the order in this suit was erroneous, and should not have been granted. But while the court made a mistake in granting the order, and it is now clear that it would have been reversed on anneal, still.the order was not wholly void. The court was one of general jurisdiction in law, and in equity. It had jurisdiction of the parties and of the subject-matter; and being called upon to determine whether, under section 970 of the Code of Civil Procedure, which provides that the findings of a jury upon