
    Max Danziger, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 12, 1894.)
    
    Trial—J ury—W aivbr.
    An objection that the issue is not triable by a jury, is waived by pro ceeding to trial before the jury without objection.
    Appeal from an order granting an injunction, unless within a certain time defendant paid to plaintiff a certain sum, as fee damages to his premises.
    
      Julien T. Davies and Brainard Tolies, for app’lts; Lewis Banders, for resp’t.
   Parker, J.

Section 970 of the Code of Civil Procedure, which provides when a party, as a matter of-right, is entitled toan order stating specific questions of fact for trial by jury, and providing that the findings of the jury upon each question so stated are conclusive in the action unless the verdict is set aside or a new trial is granted, -was by chapter 208 of the Laws of 1891, amended by adding at the end thereof the following: “ Where one or more questions arise on the pleadings as to the value of property or as to the damages which á party may be entitled to recover, either party may^apply upon notice, at any time, to the court for an order directing such questions to be stated for trial by jury.”

It was thereafter held by the local courts in a number of cases that it was the right of the defendants in suits similar in character to this to have questions relating to the value of the property, and to the amount of damages, determined bj1, a jury. The motion made by the defendants in this suit resulted in an order made November 18, 1891, stating two questions for trial by jury. The order read in part as follows: “ It appearing to the satisfaction of the court that certain questions arise on the pleadings as to the value of property and as to the damages which the plaintiff may be entitled to recover in said action, it is, pursuant to statute in such case made and provided, and on motion of Messrs. Davies, Short & Townsend, attorneys for defendants, ordered that the said questions be, and they hereby are, stated for trial by jury as follows.”

After stating the questions, the order further directed: “That this cause, for the purpose of determining the said questions so stated, be'placed upon the calendar of the circuit court, part II., to be held in and for the city and county of New York, at the county courthouse in the city of New York, for December, 1891.”

From this order no appeal has ever been taken, and in May, 1892, the questions came on for trial before -the court and jury. No objection was made to the court’s proceeding with the trial as directed in the order, and the parties proceeded as if the method of trial provided by the order was entirely regular. It resulted in a verdict not at all satisfactory to the plaintiff, whose counsel promptly made a motion upon the minutes of the court that it be set aside, which was denied. Subsequently, the suit came on for trial at special term, when the defendants caused the facts relating to the making of the order, the trial and the verdict, to appear upon the record, at the same time insisting upon the conclusiveness of the verdict until lawfully set aside. The court refused to so rule, and ignoring the verdict, rendered a judgment in hostility to it.

It is the rule in the trial of equity suits, where questions of fact are submitted to a jury, to follow the findings of the jury or not, as the conscience of the court may prompt, the verdict being treated as advisory. The learned trial court thought this rule applicable to the situation presented on this trial; and, reaching the conclusion that the jury had erred in their findings of fact, it refused to follow them, and, instead, made such findings as it thought the evidence required. Whether it was a mistake to treat the verdict rendered in this suit os a mere recommendation to the court, which it could follow or disregard, presents the question which we shall consider. Before the trial at special term, which took place in March, 1892, the court of appeals decided that the amendment to § 970 did not apply to suits of this character. Shepard v. Man. Railway Co., 131 N. Y. 215; 43 St. Rep. 117. Thus, it was established that the order in this suit was erroneous, and should not have been granted. ’ But while the court made a mistake in granting the order, and it is now clear that it would have been reversed on appeal, still the order was not wholly void. The court was one of general jurisdiction in law, and in equity, it had jurisdiction of the parties and of the subject-matter; and being called upon to determine whether, under § 970 of the Code of Civil Procedure, which provides that the findings of a jury upon questions stated thereunder shall be final, the defendants had the right to have certain questions stated for trial by jury, it decided that the pleadings in their statement of facts so far conformed to the requirements of the statute as to entitle the defendants to prevail on the motion; and the order into which this decision ripened became at once binding on both parties, and would necessarily so continue until vacated or set aside. But assuming, for the purpose of the arguments, that the order might have been safely ignored ; that the plaintiff, in his further proceedings, could havé treated it as if it were of no force or effect whatever,—the situation would be now none the less embarrassing for the plaintiff, for the fact is he did not treat the order as if it were void. On the contrary, he acquiesced in its binding force, by proceeding with the trial without protest or objection. Undoubtedly, it was plaintiff’s right, in the first instance, to have the court at special term, instead of the jury, pass upon the questions of fact. But that right, or any other, whether constitutional, statutory or otherwise, he could waive; and he did waive it by omitting to appeal from the order, and proceeding under it to trial before the court and jury, without protest or objection, down to the point where everything which the order provided should be done had been doné. Indeed, he did not even then- call in question the regularity of the procedure under the order. His motion was to set aside the verdict of the jury on the usual grounds, and not that the jury was without authority to pass upon the questions which had been submitted to them. The verdict rendered, therefore, was conclusive until set aside. The questions necessarily disposed of' in reaching the verdict were passed upon in another forum, it is true, than the plaintiff could have had, but, nevertheless, one which he had accepted as a proper one for the purpose after the making ■of the order, and therefore he was bound by the verdict until set aside. ' Not only at the opening of the trial, but later on, by proposed findings of fact and conclusions of law, the defendants called to the attention of the court the question we have discussed; and the executions taken thereto, as we think, present an error which requires a reversal of the judgment.

The judgment should be reversed, with costs to the appellants to abide the event. All concur.  