
    IRA SEYMOUR, Respondent, v. ALEXANDER McKINSTRY, Jr., and others, Appellants.
    
      Settlement of issues — discretionary with court— order dk'ecling, is not appealable.
    
    Appeal from an order of a Special Term in Onondaga county-settling issues to be tried by a jury, in an action brought to foreclose a vendor’s lien and for other equitable relief.
    The court at General Term said, “ The granting of issues is not a matter of course, but is now, as formerly, discretionary with the court. In an equity case (except a suit for a divorce), a jury trial is not a matter of right. The judge may try all the issues, or he may, either upon the application of counsel, or upon his own motion, send any question upon which he prefers the judgment of a jury, to that tribunal. From an order settling issues in an action of that character, no ajipeal lies. (Wood v. The Mayor, etc., of Mew York, 4 Abb. [N. S.], 152; S. C., 3 id., 467.) If either party desires to question the form of the issues, he may d'o so by presenting a petition for a rehearing of the decree or order directing them. (White v. Lisle, 3 Swanst., 351 ; 2 Dan. Oh. Pr., 757; 1 Barb. Oh. Pr. [2d ed.], 456.) The petition should be presented to the Special Term.”
    Ruger. & Jemvy, for the appellants, McKinstry and Sabey. Wm. W. Teall, for the ajipellants, W. W. and Sarah M. Teall. Eugene Forman, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Taloott, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.  