
    Samuel D. Colie, Appellant, v. George W. Tifft et al., Respondents.
    An order setting aside the verdict of a jury upon issues ordered to be tried in an equity action, is within the discretion of the court. The mode of trial of such an action, as limited by section 254 of the Code, is likewise a matter of discretion.
    An order, therefore, setting aside issues already tried, and directing other issues to be settled by a referee, and to be tried by a jury, is not appeal-able to this court.
    (Argued December 15th, 1871;
    decided December 22d, 1871.)
    Appeal from an order of the General Term of the Supreme Court in the eighth judicial district, affirming an order of the Special Term, setting aside a verdict rendered on issues settled, and directing new issues to be settled.
    
      The action is to establish a lien on premises conveyed by the plaintiff to the defendants for damages sustained by alleged fraudulent representations in procuring a conveyance of such premises. The answer put in issue the plaintiff’s allegations of fraud. An order was entered on the 5th day of October, 1868, upon the stipulation of the attorneys for the respective parties, directing certain specified questions of fact to be tried by a jury.
    These questions were submitted to a jury at the November Erie County Circuit in 1868, and they answered them all in the affirmative. The action was then brought to a hearing at a Special Term held in and for the county of Erie, on the third Tuesday of January, 1869. The plaintiff produced the order for the trial of the issues, the verdict of the jury thereon, and offered testimony in the case. The court examined the pleadings in the action, and the order and verdict produced, and set the verdict and issues, as settled, aside, on the ground they did not embrace the question of fraud involved in the action, and referred the matter to Judge Masten to settle new issues.
    The plaintiff appealed from this order to the General Term. The General Term affirmed the order.
    
      James Sheldon for appellant.
    The specific facts found are conclusive, if not set aside for good cause shown. (Rule 40, 2 Allen, 519; Clark v. Brooks, 2 Abb. N. S., 385; Forrest v. Forrest, 25 N. Y., 501.) On these special facts the question of fraud is a question of law. (Bennett v. Judson, 21 N. Y., 238; 1 Barb. Ch. Rep., 125-152 ; 39 N. Y. Rep., 477; Story’s Equity J., § 193; Story on Contracts, § 507; also, § 506 and note; 16 Alabama, 785; 18 Alabama, 332; See 40 Barb. S. R., 257; See Opinions, pp. 269, 270; Mead v. Burn, 3 N. Y., 275, opinion by Porter; 2 Kent’s Com., as to fraud in sale of chattels.)
    
      John Cansón for respondents.
    The order is not appealable, as the court had the discretionary power to set aside the verdict of the jury on the issues, (Lansing v. Russell, 2 Com., 563; Baker v. Ray, 2 Russell, 63; Apthorp v. Comstock, 2 Paige, 482; Candee v. Lord, 2 Com., 269; Forrest v. Forrest, 25 N. Y. R., 501.)
   Grover, J.

Whether the verdict rendered by the jury upon the questions of fact ordered to be tried should be set aside, and a new trial ordered, was, under the practice of the former Court of Chancery, a question addressed to the discretion of the court. (Lansing v. Russell, 2 Com., 563; Apthorp v. Comstock, 2 Paige, 482.) This has not been changed by the Code. (Forrest v. Forrest, 25th N. Y., 501.) Whether this discretion is exercised upon the ground of surprise, newly discovered evidence, incorrect rulings as to the competency of evidence, the weight of evidence, or as in the present case, that the issues tried not embracing all the material facts necessary for the determination of the case, and that the trial of the remaining questions will be embarrassed by permitting the verdict to stand, does not change the question in this respect. The action is such as brings the mode of trial of the issue within section 25 of the Code. That section provides that the issue is liable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it, as provided in sections 270 and 271. This section obviously makes the mode of trial, as therein limited, discretionary with the court, which discretion may be exercised upon a motion by -either party for a reference, or for a trial of the issue, or of some specific question of fact by jury, or upon an inspection of the pleadings, and the allegations of the parties when the cause is moved for trial by the court. In either case the order is in the discretion of the court, and is not, therefore, renewable by this court under subdivision 4 of section 11 of the Code. That subdivision only authorizes the review by this court of such interlocutory orders made in actions as do not involve any question of discretion. The order appealed from in this case in both its branches does involve a question of discretion, and is not, therefore, appealable to this court. Whether a case might not arise where a refusal to set aside a verdict and grant a new trial might be reviewed by this court upon an appeal from the judgment, is a question not necessary now to determine. The appeal must be dismissed with costs.

Church, Oh. J., Allen, Folger and Rapallo, JJ., concur. Peokham, J., dissents.

Appeal dismissed.  