St. Johh v. Coates — 24 Abb. N. Cas. 158

Majority

p. 158

ST. JOHH v. COATES.

N. Y. Supreme Court, First District, Special Term at Chambers;

February, 1890.

Headnote

Motions and orders; striking out issues framed.] A decision of the General Term that a judge at circuit has no power to refuse to try any issues as they were framed and sent to a jury for trial, does not preclude the court, at Special Term, on application, from taking such issues away from a jury, when it is apparent that their submission would only embarrass the case and tend to obstruct the course of justice.

Motion to reforin issues.

p. 159

The Special Term settled and framed eleven issues for a trial by jury. Upon the trial at circuit, the presiding justice struck out of his own motion all of the issues excepting the 1st, 2nd and 5th, and upon each of these the jury found in the affirmative.

' Upon an appeal by defendants from the order striking ■out the issue, the General Term reversed the order, on the ground that a justice at circuit had no power to strike out issues framed and there for trial.

Lockwood & Post, for the plaintiffs and the motion.

John H. Post, for the defendants, opposed.

No reason is assigned why the court at Special Term cannot reform the issues which were sent to be tried by a jury. What the General Term decided was that the judge at circuit could not refuse to try any of the issues as they were framed, and sent to a jury for trial.

On looking into the pleadings and examining the whole case, I entirely concur with Judge Van Brunt, that the only issues which should be submitted to the jury are the first, second and fifth. Simply because the parties have heretofore consented to other issues being tried, when there is no necessity or propriety whatever for such issues being presented to a jury does not in my judgment preclude the court from taking them away from the jury, when it is apparent that the submission of such issues would. only embarrass the case, would hot subserve any useful purpose, but only tend to obstruct the course of justice.

The motion is granted.