
    Michael Bowen, Resp’t, v. Michael Sweeney at al. Impleaded, etc., App’lts.
    
      (Court of Appeals,
    
    
      Filed October 16, 1894.)
    
    1. Trial—Jury—Partition.
    In an action for partition, the issues are triable by a jury as matter of right.
    
      2. Same.
    Though, in such case, the court directs one or more questions of fact to be tried at circuit, the facts found by the jury are binding upon the special term.
    8. Same.
    Such trial is not by the court without a jury, within the meaning of § 1001 of the Code.
    Appeal from order of the general term of the supreme court in the first judicial department, which dismissed a motion by defendants for a new trial,
    
      William H. Arnoux and Francis 0. Devlin, for app’lt; 'Flamen B. Gaudier, for resp’t.
   Bartlett, J.

This is an appeal from an order of the general term of the first department dismissing appellant’s motion for a new trial. This is an action for partition, and it was ordered that the issues of fact be sent to the circuit, and certain questions were framed for the jury to answer. Trial was had, and the jury 'answered the questions propounded. Upon the written consent of all the parties it was directed#that the further hearing of the action be proceeded with before the' court at special term. Thereupon the action came on for further hearing at special, term; the court made findings of fact and conclusions of law, including in the former the findings of the jury, and an interlocutory judgment was entered thereon. The appellants then moved at general term, upon the pleadings, verdict, findings and other papers and proceedings, for a new trial. The general term dismissed the motion upon the ground that the court had no jurisdiction to entertain the same.

The sole question presented in this appeal is whether the appel lánts were entitled to make the motion under § 1001 of the Code of Civil Procedure. '

The material portion of the section reads as follows : “ Where the decision or report rendered upon the trial of an issue of- fact by the court without a jury, or by a referee, directs an interlocutory judgment to be entered ; and further proceedings must be taken before the court, or a judge thereof, or a referee, before a final j udgment can be entered; a motion for a new trial upon one or more exceptions may be made at the general term after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. * * * ”

Does this record disclose the trial of an issue of fact by the court without a jury ? This being an action for partition the issues were triable by a jury as matter of right. Code, § 1544. In an ordinary equitable action, where the issues are not triable by a jury, the court may, upon its own motion, direct one or more questions of fact to be tried at the circuit, but it can disregard the findings of the jury, and proceed with the cause as if its aid had not been invoked. Acker v. Leland, 109 N. Y. 11; 14 St. Rep. 23.

In the case at bar the court was vested with no such discretion, and the facts found by the jury were binding upon the special term. Jones v. Jones, 120 N. Y. 599; 31 St. Rep. 940.

We are of opinion that the trial in this case was not by the court without a jury, within the meaning of § 1001 of. the Code of Civil Procedure, and that the order appealed from is right and should be affirmed.

The order should be affirmed, with costs.

All concur. Order affirmed.  