
    Mary M. O’Brien, Plaintiff and Respondent, v. James Bowes, Defendant and Appellant.
    1. An action between partners for a dissolution, an accounting, sale of the partnership property, payment of the debts, and a payment to the plaintiff of her share of the residue of the proceeds, is not an action for the recovery of money only, which must be tried by a jury, but it is a suit which would formerly have been a suit in Chancery, in which the Court had power to order a feigned issue, and in which, under the Code, an order may be made for the trial of any questions of fact which are in issue.
    2. By the rules of Court, if either party desire a trial by jury in such case, he must, within ten days after issue joined, give notice of a motion therefor. He cannot of right make such motion at a later period.
    3. The Court, for its own relief, and of its own motion, before the actual trial of the issues, may invoke the aid of a jury for their determination or for the determination of any questions of. fact involved therein. When a cause is called for trial, if it appear that the trial will require the examination of a long account, the Court may order a reference; or if there are questions which ought to be determined before the account is taken, the Court may try and determine those questions, and direct a reference to take and state the account And so, also, when the cause is called for trial, if difficult questions of fact are involved, depending probably upon conflicting testimony, the Court has power to order those questions to be tried by a jury.
    4. But where the action is brought to trial, and is actually tried by the Judge without a jury, each party giving all the testimony he desires respecting the matters in issue, and the cause is finally submitted for determination, it is too late to order a trial by jury. It is the duty of the Judge to decide the questions submitted, and it is the right of the parties respectively to have such decision.
    5. Under the circumstances last stated, an order dismissing the complaint, unless the plaintiff, within five days, apply for a trial of the questions of fact; and an order thereafter made on the plaintiff’s application, directing that certain questions in relation to which the testimony was conflicting, be tried by a jury are erroneous, and will be reversed.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, January 21st;
    decided, February 11th, 1860.
    Appeals from orders at Special Term.
    It appears by the pleadings, and the orders appealed from, that this is an action brought by the plaintiff, alleging a partnership between herself and the defendant, and praying for a dissolution, an account, a receiver, and sale of the partnership property, the payment of the debts of the firm and a distribution of the residue, and payment to the plaintiff of whatever is found due to her.
    The answer denies every material fact alleged, and the issues-thus raised were brought to trial.
    All the proofs were given by the parties respectively which they desired to give, and they rested, submitting the case to the Court for its determination.
    The trial was had at Special Term before Mr. Justice Hoffman, without a jury, and after such submission, and after consideration thereupon, on the 20th of June, 1859, he ordered “ that the complaint in this action be dismissed without costs, unless the plaintiff .apply within five days after the service on her attorneys of a copy of this order for a trial of the questions of fact in this action under the Code, in which case the question of costs is reserved.” From so much of this order as annexed a condition to the dismissal; allowing the plaintiff to apply for a trial of the questions of fact, the defendant appealed.
    On the 5th day thereafter the plaintiff applied for and obtained an order “ that the issues of fact in the action raised by the following questions be tried by a jury, and that said trial be had by submitting to. and obtaining the answer of the jury to the following questions;” specifying some of the questions of fact involved in the issues, and material to the final disposition of the cause, but some only.
    From this order the defendant also appealed.
    
      Francis Byrne, for the defendant (appellant),
    Cited in support of the appeal, Code of Procedure, (§§ 72, 251, 252, 253, 255, 266,) Draper v. Day, (11 How. Pr. R., 439,) Church v. Freeman. (16 id., 294.)
    
      Jno. F. Parsons, for the plaintiff (respondent).
    Section 72 of the Code reserves the right to order an issue for trial “ in the cases where the power now exists.”
    The Court of Chancery always had the power of awarding an issue on the hearing where a material fact became doubtful in consequence of conflicting testimony and that power was not taken away .by the act of May 2d, 1839. (1 Barb. Ch. Pr., 446; N. O. Gas Light and Banking Co. v. Dudley, 8 Paige, 452.)
    So that Court always had the power to order the hearing of a case to be suspended to enable either party to have any fact established. (1 Barb. Ch. Pr. 322.)
    The order of Judge Hoffman is to be takén together. It is no decision in .the suit, and no appeal can be taken successfully from a portion of it, so that the balance, being left untouched, the General Term would be deciding the casé in the name of the Judge at Special Term.
   By the Court—Woodruff, J.

It is clear that this is not an action for the recover of money only, or for any of the relief specified in that section of the Code of Procedure which declares what actions must be tried by a jury. (§ 253.) ■ It seeks other relief and falls within the provisions of that section (254) which declares that “ every other issue is triable by the Court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury.”

It is a suit which under our former system would have been a suit in Chancery, and in which a feigned issue might have been ordered, if doubtful questions of fact arose upon conflicting evidence, and it is therefore a case plainly within the provisions of section 72 of the Code, which provides that “ feigned issues are abolished, and instead thereof, in cases where the power now exists to order a feigned issue, * * * an order for the trial may be made, stating distinctly and plainly the question of fact to be tried, and such order shall be the only authority necessary for a trial.”

There was, therefore, no lack of power in the Court to order any question of fact arising upon the issues between the parties to be tried by a jury, and to settle and determine what questions should be so tried.

The ground of the present appeal is, that it was too late to make the order when it was made. That in fact the cause had been tried by the Court without a jury, and nothing remained but to render judgment, and that the parties respectively were entitled as matter of legal right to the decision of the Judge upon the questions submitted to him. Hot only so; that in fact the decision was in substance made' by declaring that the complaint be dismissed, unless the plaintiff applied for a trial.

The power of the Court to order a trial by jury being clear, the inquiry is, when that order may be made, and at what stage of the proceedings it may not be made ?

Rule 33 of the present rules of Court, provide in terms that in cases of this description, “if either party shall desire a-trial by jury, such parties shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by a jury.”

So that by going to trial before a Judge sitting without a jury, the parties plainly lost all right to move for such a trial on that hearing, or to make such a motion at any time afterwards. The order of the 20th of June, permitting the plaintiff to move for a trial by jury, was in direct opposition to the rule, and the motion made in pursuance of that permission was in like manner in conflict with its provisions.

If, however, the Court had power in this stage of the cause, as of its own motion to direct the trial of the questions of fact by the jury, the order should not be reversed merely because the Court authorized the plaintiff to ask for such an order.

That the Court may, for its own relief, at any time before the actual trial of the issues, invoke the aid of a jury for their deter-ruination, or for the determination of any question of fact involved therein, I entertain no doubt.

The power of the Court of Chancery before the Code to do. so, was unquestionable, and the terms of the 254th section of the Code above referred to, are broad and unqualified in conferring the power.

And, although the rules of Court have made it the duty of the party, if he desires such a trial, to apply within ten days after issue joined, his neglect to do so no more deprives the Court of the power to seek the aid of a jury for its own relief, than the omission of the parties to apply for a reference renders it necessary for the Court or the Court and jury, to examine a long account at whatever loss of time or however great the inconvenience.

In this respect, I fully agree with Mr. Justice Harris in his opinion expressed in Church v. Freeman. (16 How. Pr. R., 297.)

The Court, when a cause is brought on for trial, if it appear that the trial will require the examination of a long account, may order a reference. Not only so, if there are questions to be settled which ought to''be decided as a basis of the reference or as a guide to the conduct of the reference, the Court may undoubtedly hear and determine those questions, and then send the matter to a referee for the taking of the account.

So the Court, when the cause is called for trial, if it see that questions of fact are involved, the determination of which may depend and probably will depend upon conflicting testimony, may order those questions to be tried by a jury. It was a common exercise of the power of a Court of Chancery; the Revised Statutes did not deprive the Court of the power; and the Code, so far from taking it away or restraining its exercise, appears to me to confirm it. (N. O. Gas Light Co. v. Dudley, 8 Paige, 452; Gardner v. Gardner, 22 Wend., 536; Monson v. Clarke, 1 Clark C. R., 580.) It was the usual practice in Chancery to make the application for such a trial, when the cause was brought to a hearing, (18 Ves., 481; 1 Hoff.. Ch. Pr., 503; 1 Sim. & Stuart, 366;) and though the rule of Court may now prevent a party from making a motion therefor at that stage of the proceedings, I know of nothing to prevent the exercise of the power by the Court, if the aid of a jury is desired.

But these views are not decisive of the present appeal. In this action there was no application by the parties for a trial by jury. The Court, at the trial, did not order the submission of any questions to a jury. The cause was regularly brought to trial, and was tried before the Judge. All the testimony which either party desired to give respecting the matters in issue was given, and the cause was submitted for determination.

All this having been done, we think all questions respecting the' mode of trial were at an end, and it was the duty of the Judge to decide the questions submitted. Hot only so, we think it was a right of the parties, respectively, to have his decision.

We are aware that the Court of Chancery was accustomed, when not satisfied by the proofs as they were exhibited, to order a cause to stand over for the production of further proofs. That Court was always open, and such an order was, in substance, continuing or protracting the trial of the cause until the matter was ripe for determination, but even that course did not involve a refusal to decide when all the proofs were in and the case submitted for decision. *

Our present system assimilates the practice in all actions, whether at law or in equity. Our courts are held at successive terms, under regulations conformable to the practice of courts of law. A trial cannot regularly be begun in one term and be finished at another. And although it may be allowable to suffer a case to stand over from day to day for further proof when the Judge is sitting without a jury, we think that when the parties have closed their evidence and submitted the cause, the Judge has no alternative; he must decide.

He may—experience teaches that he often does—regret that the responsibility is upon him, and that he cannot rely on a jury to decide under a conflict of evidence and doubts as to the credibility of witnesses, but we 'think he must decide, and that whatever might have been the powers of a Chancellor, the Code has allowed him no choice.

The 267th section of the Code declares, that upon a trial of a question of fact by the Court, its decision shall be given in writing and filed with the clerk within twenty days after the Court at ' which the trial took place.

In respect to the time of decision, this may be merely directory, but the duty to decide is absolute and unqualified, and we have no doubt that the right of the party to have a decision, and a decision of the very question tried, is so perfect and absolute, that a mandamus would lie to compel the Judge to make the decision. Nor can the Judge satisfy the law by any order to stand over, or to try the question elsewhere. He must decide the question of fact, and this appears from the words of the section which follows, viz.: Judgment upon the decision shall be entered accordingly.”

It follows from these views that the orders appealed from were erroneous, and so far as appealed from should be reversed. Ordered accordingly.  