179 A.D. 236 | N.Y. App. Div. | 1917
Upon an application for the cancellation of a liquor tax certificate, it was ordered at Special Term, upon respondent’s motion, that the issues raised by the answer to the petition “ be tried before the court and a jury, in order to aid the conscience of the court.” The question is whether the court had the power to make the order. That the respondent has not the constitutional right to trial by jury has been decided. (People ex rel. Presmeyer v. Comrs. of Police, 59 N. Y. 92; Matter of Lyman, 46 App. Div. 387; affd., 163 N. Y. 552.) But the respondent urges that the court has the inherent and statutory power to invoke the aid of the jury. Section 971 of the Code of Civil Procedure is: “ In an action, where
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Jenks, P. J., and Putnam, J., concurred; Mills, J., concurred upon the ground that the court made an unwise exercise of discretion in directing a trial by jury; Blackmar, J., concurred in the result.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.