Sherwood v. Sherwood

We are of the opinion that all of the issues should be tried together. If it is found that the defendant’s ancestor was incompetent, or that the contracts were procured by undue influence, it wiU be unnecessary to try the issues of reformation and as to whether there was a trust. If the finding is against the defendant upon the first two questions, then the same evidence may become relevant upon the other two issues, and that question may be disposed of by the trial judge alone, or with the aid of the verdict of a jury, upon special findings. The decisions cited (Goss v. Goss & Co., 126 App. Div. 748 ; Johnson v. Johnson, 157 id. 289; Harrison v. Loeser & Co., Inc., 164 id. 115) are in cases which arose in counties where equitable issues are not tried at the Trial Term, as is the practice in some of the rural counties in this Department and as may be done in this case in the discretion of the trial judge. Furthermore, the application should have been denied upon' the ground of laches. All concur. Motion for stay pending appeal denied.