
    Molly Borowsky and Others, Respondents, v. Pauline Gallin, Appellant.
    Second Department,
    May 8, 1908.
    Equity—jury trial.
    It is wholly within the discretion of the court as to whether the issues of fact in a suit to foreclose a mortgage on lands shall he sent to a jury.
    A verdict in such suit is not binding on the court.
    In refusing to send the issues in such suit to a jury, the court may consider the fact that the jury calendar is in arrears.
    Hooker and Woodward, JJ., dissented, with opinion.
    
      Appeal by the defendant, Pauline Gallin, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 14th day of January, 1908, denying-the defendant’s motion to settle the issues and for trial by a jury.
    The action is to foreclose a mortgage on real estate made by the defendant.
    
      William, H. Chorosh, for the appellant.
    
      Frank F. Davis, for the respondents.
   Gaynor, J.:

It was in the discretion of the court below whether it should direct that the issues of fact, or any of them, should be sent to a jury trial (Code Civ. Proc. § 971). It was influenced to some extent in denying the motion by the condition of the jury calendar (it is over two years in arrears) as the memorandum filed with its decision shows. This was not improper. Indeed, motions like this are sometimes made hereabouts to avoid the speedy trial afforded by the equity calendar. A verdict for the defendant would not bind the court; it has the responsibility of giving judgment in the end, and the rule is for the court to try such cases without having its conscience enlightened or aided by a verdict.

The order should be affirmed.

High and Miller, JJ., concurred ; Hooker, J., read for reversal, with whom Woodward, J., concurred.

Hooker, J. (dissenting):

The action is for a foreclosure of a mortgage; the defense is that the mortgage was given without consideration and was obtained through fraud and under duress.

The defendant made timely application to the court under the provisions of section 971 of the Code of Civil Procedure for the settlement of questions to be tried by a jury. The motion wTas denied, “ owing to the condition of the civil calendar ” of the court in which the action w&s commenced.

Section 971 of the Code reads as follows: “ In an action where a party is not entitled, as of right, to a trial by a jury, the court may, in its discretion, upon the application of either party, or without application, direct that one or more questions of fact, arising upon the issues, be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly.” This is a substitute for the former practice of trying feigned issues in actions in equity. (Carroll v. Deimel, 95 N. Y. 252.) "Both under the old practice in equity and under the Code it is contemplated that the court shall exercise its discretion whether or not to settle issues upon the basis of the nature of the action and of the defense and the circumstances disclosed by the issues, rat,her than upon the basis of the condition of the jury calendar of the court.

The order should be reversed, with costs, and the motion remitted to the County Court of Kings county for further proceedings in accordance herewith

Woodward, J., concurred.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.  