
    Joseph Schmitt v. Henry Traphagen.
    [Decided November 27th, 1906.]
    In a suit to quiet title, a motion for a new trial of an issue directed to be tried at law will be denied by the court of chancery without examining into the merits of the decision, since an appeal can be taken as well from the judgment directed by the justice of the supreme court, as from any judgment upon the same question emanating from this court.
    
      Messrs. Russ & Fleppenheimer and Mr. Maximilian T. Rosenberg, for the complainant.
    
      
      Messrs. Collins & Corbin and Mr. Augustus A. Rich, for the defendant.
   Garrison, V. C.

This is a suit under the act to quiet title, and is a motion in such suit for a new trial of an issue directed by this court to be tried at law in accordance with the provisions of the statute.

It appears from the state of the case submitted to this court that at the trial'in the supreme court the justice of the supreme court presiding thereat conceived that the sole question was one of law, and therefore directed a verdict in favor of Schmitt upon the issues tried before him.

I have not myself examined the question which was passed upon at the trial in the supreme court, and for the reason which I am about to state: The question, if it was one of legal title, was eminently one to be passed upon by the courts of law. It was conceived to be such a question by the eminent jurist presiding. Any independent investigation that I could make would result either in concurring in his judgment or in disagreeing with it, and in the latter event, if I granted a new trial, the justice of the court sitting at such new trial would probably consider that he was bound by the same view of the law taken by the justice of the supreme court sitting at the first trial. It appears to me that the best solution of this question is to have an appeal taken as promptly as possible to the court of ultimate decision, and this can be as well done from the judgment directed by the justice of the supreme court as from any judgment upon the same question emanating from this court.

I have therefore determined to adopt the view of the law enunciated by Mr. Justice Dixon, at the trial, as my view, and to refuse a new trial.  