
    William C. Randall, Resp’t, v. Frank Randall, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    I Practice—Equitable action—Question of fact—Code Civ. Pro., § 971.
    Where in an equitable action the court submits to a jury for trial the question of fact, or any of them, within the issues, it is wholly a matter-of discretion with the court under Code Civil Procedure, § 971, and the practice, although differing in form, is, in practical effect, substantially the same as that which formerly prevailed for awarding feigned issues and taking verdicts upon them. The court sending the case to be tried may adopt or disregard the finding of the jury, or set aside the verdict and direct a new trial at its discretion.
    2, Same—No appeal from order granting new trial—Code Crv. Pro., § 190-1347.
    The granting of a new trial in such a case is a matter resting in the discretion of a court, and the discretion of the court ordering and granting a new trial does not come within the statute providing for appeals (Code Civ. Pro., § 190), and is not appealable to the court of appeals. Id., § 1347, subd. 2.
    3. Same—When motion for new trial involves question of fact.
    When a motion for a new trial involves a question of fact which may or could have been considered in its determination by the general term, an order granting a new trial, when the trial was had by a jury, is not reviewable by the court of appeals.
    Appeal from an order of the general term of the supreme court, in the third judicial department, affirming an order setting aside a verdict and granting a new trial of certain issues.
    6r. H. Beckwith, for app’lt; William, P. Cantwell, for resp’t.
   Bradley, J.

The action is equitable in character, and was brought to obtain a dissolution of partnership alleged to exist between the parties, and for an accounting. The defendant, by his answer, alleged that he had sold his interest in the firm property to the plaintiff, for the sum of $500, in settlement of all partnership matters, of which sum he w.as paid by the latter $200, and demanded judgment for the balance, $300 and interest. The plaintiff, by his reply, put such alleged claim in issue, and the questions of fact, whether the defendant did make such sale to the plaintiff, and the latter agreed to pay such sum, and did pay thereon $200, etc., were submitted to the jury, and upon a conflict of evidence they found in the affirmative upon such questions of fact.

This was in favor of the defendant. And on the plaintiff’s motion, made on the minutes, the verdict was set aside and a new trial granted. That order being affirmed by the general term, the defendant appealed to this court. The trial by jury of the questions of fact, or any of them within the" issues, was wholly matter of discretion of the court (Code Civ. Pro., § 971), and the practice in that respect, although differing in form, is in practical effect substantially the same as that which formerly prevailed of awarding feigned issues and taking verdicts upon them. As then it was done in aid of the chancellor, and to inform his conscience upon questions of fact, so now the purpose as applicable to the court is the same. Vermilyea v. Palmer, 52 N. Y., 471; Acker v. Leland, 109 id., 5; 14 N. Y. State Rep., 23.

The court below might adopt or disregard the finding of the jury, or set aside the verdict and direct a new trial at its discretion. Lansing v. Russell, 2 N. Y., 563; Colie v. Tifft, 47 id., 119; Clarke v. Brooks, 1 Abb. Ct. App., 355. And because the granting of a new trial was a matter resting in the discretion of the court below, the order did not come within the statute providing for appeals (Code Civ. Pro., § 190), and was not appealable to this court. Id. § 1347, subd. 2. See cases before cited.

The consequence must be a dismissal of the appeal. It may also be observed that nothing would have been presented by this appeal for review if the action had been triable as matter of right by jury. The reason is that in the motion for a new trial were involved questions of fact, which may or could have been considered in its determination by the court below. In such case an order granting a. new trial, when the trial was had by jury, is not reviewable in this court. Wright v. Hunter, 46 N. Y., 409; Arnold v. Robertson, 50 id., 683; Fallon v. Brooklyn City, etc., R. R. Co., 56 id., 652; Courtney v. Baker, 60 id., 1; Harris v. Burdett, 73 id., 136; Whitson v. David, 81 id., 645; Bronk v. N. Y. and N. H. R. R. Co., 95 id., 656; Kennicutt v Parmalee, 109 id., 650; 15 N. Y. State Rep., 515.

The appeal must be dismissed.

All concur, except Potter, J., not voting.  