
    Alberta P. Tracy et al., Plaintiffs, v. Annie Dolan et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1900.)
    Partition — Jury trial — Justice, ordered to try the issues upon the pleadings, cannot make findings or try any issues himself.
    Where issues in partition, triable by a jury as a matter of right, are ordered to be tried upon the pleadings, instead of being stated separately for trial, the Trial Term justice has no right to decide any of the issues which are to be submitted to the jury, or make any findings of fact or of law — and where this has been done and such findings have been filed, the paper should' be stricken from the record.
    Motion to vacate and set aside certain findings of fact and conclusions of law.
    Joseph Fettretch, for motion.
    S. Hanford, opposed.
   Beekman, J.

This is an action for partition. The defendants answered, putting in issue material allegations of the complaint. As such issues are triable by jury as a matter of right (Code Civ. Pro., § 1544), an order was made by the court, on motion of plaintiffs’ attorneys, which, after reciting that it was insisted by counsel for the defendants “ that the issues should be tried upon the pleadings, without being stated separately, to which counsel for the plaintiffs agree,” directed that the said issues as made by the pleadings,” be tried by jury, and that for that purpose, the cause be placed upon the preferred calendar of the Trial Term for trial on the first Monday of Rovember thereafter, “ and that the verdict thereon when rendered be certified to the Special Term of this court for further proceedings.” The direction that the issues be tried upon the pleadings was a proper one, as the above-mentioned section of the Code authorizes the court either to direct the issues to be stated as prescribed in section 970, of to follow the course which was adopted here. The issues accordingly came on for trial, and certain questions having been submitted to the jury, the latter duly answered them, and the special verdict thus rendered was received and recorded. Thereafter the trial justice signed a paper containing findings of fact with respect to other issues than those which had been submitted to the jury, and also certain conclusions of law embodying his determination of the legal effect of the facts established by the verdict and his own findings. The verdict of the jury was rendered on October 13, 1899, and the findings above referred to were dated oh the same day. The attorneys for the defendants had no knowledge that the trial justice had been asked to make such findings, and their first intimation that he had signed any such paper was received as hereafter stated. It is proper to say in passing that there is not the slightest intimation of bad faith on the part of the plaintiffs’ attorneys in the matter, they believing that their practice was entirely regular. On Rovember 18, 1899, plaintiffs’ attorneys noticed a motion at Special Term, Part III, for judgment on the verdict, and thereafter, and on December 11, 1899, they served upon defendants’ attorneys a copy of said findings, together with a notice that the same had been filed in the county clerk’s office on that day, and would be read on their motion for judgment. The attorneys for defendants now move for an order vacating and setting the same aside. It seems to me quite clear that the learned trial justice had no authority whatsoever to make any findings in the matter. The cause was not before him for final determination, but only for the trial of the issues by jury. His only function was to preside at the trial, and to submit such issues to the jury for their determination, and to cause their verdict to be returned to the court at Special Term, for its consideration there in proceedings to be there had for a final determination of the action. The cause is one cognizable in equity; it was properly on the Special Term calendar, and still continued there, notwithstanding the direction for a jury trial which had been given, and the proceedings to that end had at the Trial Term. The action was not transferred to the Trial Term, but remained on the equity side of the court awaiting the return of the verdict. When the function of the trial justice as above defined had been performed, his jurisdiction over the action ceased. He had no power to find facts which the jury had not found, much less to determine what legal conclusions should be drawn from any fact which had been, or which he deemed had been, established on the trial. All of that rightfully belonged to the court at Special Term, when the verdict had been duly certified to it. My conclusion is that this motion should be granted, as I am satisfied that, inasmuch as the so-called findings are without legal sanction for their support, they should be vacated and eliminated from the record. They are now upon the files of this court, forming a part of the record of this cause, and may be used to the disadvantage of the defendants. Hnder such circumstances, and in the interest of orderly procedure and practice, it seems quite clear that the defendants are within their right in asking the court to adjudge the invalidity of this paper and, constructively at least, to expunge it from the record. ■ Motion granted, with ten dollars costs.

Motion granted, with ten dollars costs.  