
    Alberta P. Tracy and Robert C. Davey, as Executor, etc., of William L. Evans, Deceased, Respondents, v. Annie Dolan, Appellant, Impleaded with Others.
    
      Yerdiat upon a single question in an action of partition —it is not a special verdict — the court may direct a verdict upon the other issues, although the jury separated after signing and sealing its verdict.
    
    Where the right's of the parties in an action of partition depend upon the legitimacy or illegitimacy of the grantor of one of the defendants, which is the only question litigated at the trial, the court may, after the jury have returned a sealed verdict upon that question, which is the only one submitted to them, direct a verdict upon the other issues presented by the pleadings,- notwith- ' standing the fact that the jury separated after signing and sealing their verdict upon the question submitted to them.
    The verdict upon the question submitted is not a special verdict.
    Appeal by the defendant, Annie Dolan, from an "order of the Supreme Court, made at the New York Special Term and entered in the office of .the clerk of the county of New York on the 9th day of March, 1900, denying her motion to set aside a verdict rendered in the action.
    
      Joseph Fettretch, for the appellant.
    
      S. Hanford, for the respondents.
   Hatch, J.:

The action was brought for the partition of certain lands, and upon issue being joined, the trial of the issues was directed to be • had before a jury, pursuant to section 1544 of the Code of Civil Procedure. Under the order which was made directing the trial by jury, all.of the issues which were raised by the pleadings became tlie subject of determination at such trial.- The case has been three times tried. Upon two of the trials the jury disagreed, and upon the last trial a verdict was found in favor of the plaintiffs. Upon each trial the matter at issue became narrowed down to a single questionj- i. e., “ Is Kate Maria Williams the daughter of David W.' Evans, born after a marriage between him and Hannah Maria Van Deventer? ”

The plaintiffs claim to be interested in the property sought tó be par- • titioned as next of kin and heirs at law of David W. Evans, deceased, while the .defendant, Annie Dolan, claims .by conveyance from the daughter and only child of the deceased. It is, therefore evident that the answer to be made by-the jury as to whether .or. not the latter was an illegitimate child of the deceased would resolve all of the issues presented by the pleadings in favor of the one . party or the other, and such was evidently the view of both parties upon all of the trials which have been had. Indeed, upon the second trial "the counsel for the defendant "stated substantially in terms the same question which was submitted for determination at the last trial as being the only contested question in the case; so that not only was no objection raised to the ruling of the court in this respect, but upon each of the three trials counsel for the respective' parties agreed in terms as to the only contested question, and acquiesced'in its submission to the jury.

Upon the last trial the jury were directed to bring in a sealed verdict, and after the court had adjourned they finished their deliberations, made up their verdict and separated, thereafter appearing in court when the verdict was received. Immediately upon the reception of the verdict, counsel for the plaintiffs moved for the direction of a verdict upon the other issues raised by the pleadings. Objection to this was interposed by the defendant, based upon the claim that, the jury had separated after the rendition of the verdict, qnd consequently were without any authority to render any further one, and, further, that such questions were for the consideration of the court at Special Term, and were not proper matters for disposal by the trial court. These objections were overruled and a verdict upon the issues directed in favor of the plaintiffs.

The fact that the jury had separated after signing and sealing their verdict constituted no obstacle to their rendering a further verdict upon the issues in the case. Indeed, the effect of the whole proceeding was to resolve all such questions in favor of the successful party upon the answer made' to the single question submitted; If the jury had made answer that the grantor of the defendant Dolan was the legitimate child of the deceased, its effect would have. been to show that the plaintiffs, as against the defendant Dolan, possessed no interest or estate in the property. The finding being against her, the effect of - the determination was that she was without interest thereinand as the other parties to the action were not in contest over any question, it was clearly competent for the-court to dfirect and the jury to find the verdict as requested. The whole issues were before the court, so far as the pleadings raised issue, as completely as they would have been at Special Term.

It is claimed, however, by the defendant that the verdict upon, the submitted question was a special verdict and, as no other verdict was properly rendered, there was a mistrial for the reason that the verdict was incomplete and would not authorize a judgment to-be rendered thereon. We think-that the defendant is mistaken in his contention. The verdict was not a special verdict; such verdicts are taken for the purpose of placing upon 'the record facts in order that the court may determine the law as applicable thereto. (Carr v. Carr, 52 N. Y. 251; Merchants' Nat. Bank v. Tracy, 77 Hun, 443.) In the present case it was not expected that there would remain any question of law arising out of the facts as found which might thereafter, as the law should be applied, determine the controversy for or against a particular party. Here the question was. i'eally one of fact, and when the jury made answer of the fact no question of law remained, as the fact itself determined the rights of the parties. It is undoubtedly true that a verdict was essential to be rendered upon all of the issues presented by the pleadings, at least upon those which were material to the controversy; but when the contested question was answered then, the court was required to direct a proper verdict upon the uncontested and really undisputed facts in favor of the party who had received answer in their favor upon the only contested question in dispute.

It is evident that there was no mistrial of the action ; but, on the contrary, the course of the trial and the attitude of the parties made the verdict which was rendered conclusive of the respective rights and interests and only required a formal order of the court to make evidence of them and thus to furnish a complete verdict upon which judgment in accordance with the rights of- the parties either as conceded or settled by the verdict, might be entered. It follows, therefore, that the verdict was proper and the order should be affirmed,, with ten dollars costs and disbursements. • •

■' Patterson, Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  