
    Barbara Ellensohn, Respondent, v. John S. Keyes and Another, Individually and as Executors, etc., of Antoine Ruppaner, Deceased, and Others, Appellants.
    
      Tft'aming issues — notice of the application therefor must be made within ten days after joining issue—the oi'd,er affects a substantial right and, is appealable — an action charging attorneys with collusion in the trial of another action, should be tried by the court.
    
    Section 971 of the Code of Civil Procedure contemplates two methods hy which issues to he tried hy a jury may be framed in an action where a party is not entitled as a matter of right to such a trial; one, where the application is made to the court; and the other, where the court upon the trial desires the verdict of the jury to assist it in determining some question of fact at issue.
    
      Where the application is made by a party, rule 31 of the General Rules of Practice, providing that notice of the application must be given within ten days after issued joined, is applicable, and it is improper to grant such an application upon behalf of a party in default, where no reason is given why the application was not made within ton days after issue joined.
    The Appellate Division has power to review all orders of the Special or Trial Term of the Supreme Court addressed to the discretion of the court, where they affect a substantial right and the method of the trial of an action does affect a . substantial right, and an appeal lies from an order which decides that method.
    Where an action is brought by the plaintiff as next of kin or heir at law of a deceased person to have a judgment of the Supreme Court, establishing the • validity of a last will, set aside as fraudulent, and the complaint alleges collusion between the attorneys for the respective parties, the case is one which should be tried by the court rather than by a jury.
    Attorneys are officers of the court, and whether or not stipulations made by attorneys as to the conduct of litigations before the court are proper and within their power and were made in good faith and for- the protection of their . clients, is peculiarly a question for the determination of the court.
    Appeal by the defendants, John S. Keyes and others, 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 22d day of May, 1896, directing the trial -of certain issues of . fact .in the action by a jury -and settling the same.
    
      William B. Hornhlower and Edward O. Eerlcins, for the •appellants.
    
      Isaac N. Miller, for the respondent.
   Ingraham, J.:

Section 9Y1 of the Code contemplates two methods by which issues to be tried by a jury may be framed in an action where the party is not entitled, as a matter of right, to- such' a trial; one, where the application is made to the court, and. the other where the court, at' the trial, of its own motion,, desires the verdict of a jury to assist it in determining some question of fact at issue. Where the application is made by a party to have issues framed, rule 31 of the-General Rules of Practice provides that notice of that application must be made within ten days after issue joined. The object of this rule is apparent, It is. to prevent, upon the eve of the trial, where the parties have prepared for trial at- Special Term, an application to frame issues to be tried by a jury, thereby causing the delay and additional expense incident to such a trial.

Where a party has allowed more than ten days to e.apse Before giving notice of the application, the court, undoubtedly, has power, upon proper facts, to open the default and allow the application to be made, but facts must be shown to excuse the neglect to apply within the time prescribed by the rule.

By section 17 of the Code, the General Buies of Practice are made binding upon all the courts of the State and all judges and justices thereof, except the court for the trial of impeachments and the Court of Appeals, and the rules made as jnovided for by this section have the force of a statute, and were binding upon the court below.

This motion was made on March 7, 1896, and the moving affidavits show that issue was joined in the action oh January 3, 1896; thus, much more than ten days elapsed from the time that issue was joined and the service of the notice of the application.

Buie 31 of the General.Buies of Practice was called to the attention of the court by the affidavit in opposition to the motion, and the court proceeded to grant the motion without a suggestion of any reason why it had not been made in time, and without the slightest excuse for the delay or ground for opening the default. For this reason, if for no other, we think the order was improperly made.

There can be no doubt but that this order is appealable to the Appellate Division. While it is true that the application was addressed to the discretion of the court, still it was to the Supreme - Court, and the . Appellate Division is as much a part of the Supreme Court as the Special Term at which the application was made.

Much confusion has arisen because of the attempt to apply decisions of the Court of Appeals as to the appealability of orders to that court to the question of the power of the Appellate Division tore view orders of the Special Term, and cases which discuss the appealability oE orders to the Court of Appeals have no relation to the power of this court to review the orders of the Supreme Court... General power is given to the Appellate Division by section 1347 of the Code to review all orders of the Special or Trial Term of the Supreme Court where they aifect a substantial right. W e think the method of trial in an action affects a substantial right, and that the order is clearly appealable.

But upon the merits of this application we think no reason was' shown to the court below that would justify the court in directing that any or all of these issues framed should be tried by a jury. The action is brought by the plaintiff as one of the next of kin or heirs at law of Antoine ■ Buppaner, deceased, to have a certain judgment entered in an action under section 2653a of the Code of Civil Procedure, whereby the validity of the last will and testament of the said Buppaner was established, and which it was alleged was procured collusively and in fraud of the plaintiff’s rights, vacated and canceled of record as to this plaintiff. The complaint alleges that such action was brought on for trial in pursuance of an agreement between the then attorney for this plaintiff and the . ■attorney for the executors of the deceased; that such action should be brought and should not be contested, in order to cut off the rights of this plaintiff, as the heir at law and next of kin of the said decedent, to contest the validity of the said will; that under such an agreement the said action came on for trial on the 20th day of April, 1893, and in such' action a verdict was recovered without any opposition on the part of the plaintiff’s attorney, and that judgment upon such verdict was subsequently entered with the clerk of the city and county of New York. We think that this was eminently an action to be tried by the court rather than by a jury.

Attorneys at law are officers of - the court, and the proper performance of their duty to their clients is always watched with jealous care by the court. Whether or not stipulations made by such attorneys as to the conduct of litigations before the court are proper and within the power of the attorneys to make, are made in good faith and for the protection, of the client, is .peculiarly a question that the court is able satisfactorily to determine, and to submit such a question to the jury would often subject, the party to an action who has relied upon the judgment of the court based upon such consents, and whose rights have been adjudicated by such judgment, to great injustice.

There is no suggestion. of any reason why a trial by a jury is' necessary, except that the plaintiff’s attorney says that in his judgment the issues of fact should be tried by a jury. It is only necessary to say that our judgment is not in accordance with that of the attorney of the plaintiff.

It is proper that we should call attention to the issues as framed in tliis case, to emphatically condemn the practice of submitting such issues to a jury in any case. The court has settled twenty-two issues. The most of them are entirely immaterial in the determination of any question at issue in the case, and those which are material would be simply evidential facts which, if found in favor of the plaintiff, could only be considered upon the one main question at issue.' Many of the issues are so framed as to make it almost impossible for a jury to intelligently pass upon them; and in general they are misleading and improper and could not fail to produce upon the trial great confusion. The answers of the jury to these questions, or most of them, would aid the court very little in the final judgment to be entered.

' The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  