
    Louis V. Southack, Appellant, v. Central Trust Company of New York, Individually and as Substituted Executor, etc., of John W. Southack, Deceased, and Others, Defendants; Eugene Southack and Others, Respondents.
    
      Practice as to the trial of actions for partition in the first judicial district.
    
    An action in partition is on the equity side of the court, and is properly noticed for, and placed upon, the Special Term calendar.
    An action in partition brought in the first judicial district cannot be placed upon the general Trial Term calendar, but may be placed upon the preferred Trial Term calendar and brought to trial there, whenever a proper order is made sending the issues to the Trial Term.
    The practice governing actions in partition brought in the first judicial district, stated.
    Appeal by the plaintiff, Louis V. Southaok, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1901, granting the motion of the defendants Eugene Southack and others to strike the cause from the calendar.
    
      FrcmklÁn PTevins, for the appellant.
    
      G Itwenee P. Moser, for the respondents.
   Van Brunt, P. J.:

The' confusion in respect to the method of disposition of this case upon the calendar seems to have arisen from the fact that the counsel have apparently forgotten that an action in partition is one upon the equity side of the court, the judgments in which must be entered at the Special Term. It is true that either party may demand t-hat all.the issues in a partition action be tried by a jury; blit that in no way affects the general character of the action. It follows, therefore, that such an action is .properly placed upon the Special Term calendar and noticed for trial there.

A very brief consideration of the sections of the Code applicable to the method of trial in such an action will show what the future practice should be. Section 1544 of the Code is as follows: “ An issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated, as prescribed in section 970 of this act, the issues may be tried upon the pleadings.”

And section 970 is as follows “Where a party is entitled by the constitution, or by express provision of law, to a trial by a jury, of one or more issues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply upon notice, to the court for an order, directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application, the court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated. The subsequent proceedings are the same, as where questions arising upon the issues, are stated for trial by a jury, in a case where neither party can, as of right, require such a trial; except that the finding of the jury upon such questions so stated, is conclusive in the action unless the verdict is set aside, or a new trial is granted.”

Consequently when an action in partition is at issue and has been placed upon the Special Term calendar and noticed for trial, either party, without waiting for the cause to be reached on the calendar, may, under section 970, apply to the court for an order settling the • issues and directing its trial by a jury at the Trial Term, or when the case comes on for trial at the Special Term a demand for a jury trial may be made and the court at Special Term may then settle the issues and send them into the Trial Term (which is the better practice), or may simply make an order directing that the issues^ raised by the pleadings be tried at Trial Term. When such an order is made upon filing the certified copy of the same with the calendar clerk of the Trial Term, Part 2, it is the duty of such clerk to put the case upon the preferred calendar as provided for by rule 3 regulating the practice of the Trial Terms in this district, and the case when reached upon this calendar must then be tried, issues being framed by the trial court if they have not already been framed by the Special Term, and upon a verdict being rendered upon such issues the same must be certified by the clerk to the court at Special Term. No new notice of trial is necessary at the Trial Term, because, under section 970 as above seen, the proceedings after making the order sending the issues to be tried at the Trial Term, are the same as when questions arising upon the issues are stated for trial by a jury in a case where neither party can as of right require such a trial, except, etc.

Section 823 of the Code is as follows: “ Feigned issues have been abolished. In a case where neither party can,.as of right, require a trial by jury of an issue of fact arising upon the pleadings or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made stating distinctly and plainly the questions of fact to be tried. Such an order is the only authority necessary for the trial.” The last sentence of which as will be seen provides that the order directing the trial of the issues by a jury is the only authority necessary for the trial.

The issues having been tried and a verdict rendered and such verdict having been duly certified to the court at Special Term, an application may be made upon such verdict for an interlocutory judgment as provided for by section 1546 of the Code and a judgment of actual partition or sale or partition and sale may be entered as the facts of the case may warrant. ■ An action in partition has no place upon the general Trial Term calendar of the court and is. properly placed upon the preferred calendar and brought to trial at the Trial Term whenever the proper order is made sending the issues to the Trial Term to .be tried.

The order appealed from must be affirmed, but Under the circumr stances, without costs.

Patterson, McLaughlin, Hatch and Laughlin, JJ., concurred.

Order affirmed, without costs.  