Toch v. Toch — 9 A.D. 501

Majority

p. 501

Serena Toch, Appellant, v. Henry M. Toch and Others, Impleaded with Maximilian Toch, Respondent.

Headnote

Extra allowance in an equity case—it cannot be granted unless there has been a trial at Special. Term — the motion therefor must be made at Special Term.

A motion for an extra allowance can only be made in the branch of the court in. which the trial was had.

The trial of the issues in an equitable action by a jury is preliminary merely, and the justice presiding at the trial is not authorized to dismiss the complaint, nor to make a final determination of the action.

Where the trial of the issues by jury is a matter of right, the Special Term must accept the v.erdict of a jury rendered at a Trial Term, but the Special Term must, before any judgment can be pronounced, act upon the whole case.

Semble, that where issues joined in an action of partition, which is equitable in its nature, have been sent to a Trial Term for a trial by' a jury, and the justice presiding at the Trial Term dismisses the complaint, there has been no trial and the successful party is not entitled to an extra allowance.

Appeal by the plaintiff, Serena Toch, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the cleric of the county of Hew York on the 3d day of July, 1896, nxmo fro intnc as of the 12th day of June, 1896, granting the defendant Maximilian Toch an extra allowance of costs.

Charles G. F. Wahle, for the appellant.

Louis Wertheimer, for the respondent.

' The order appealed from, granting a motion for an extra allowance in a partition suit, was made at the Special Term. There had been no hearing of the cause, but issues had been joined and the-cause put upon the calendar for jury trials. The complaint was dismissed by the justice at the Trial Term. Ho application for an extra allowance was made to him.

In no aspect of the subject was the moving party, the respondent, in titled to the order made. Pule 45 of the General. Pules of Practice expressly provides that all applications of this character " can only ” be made to the court beforé which the trial is had or the judgment rendered, that is to say, the branch of the court as at

p. 502

present constituted in which the trial is had. There was no trial of the action ; but assuming for the moment that there was¡ then the respondent was clearly wrong in moving elsewhere than at the Trial. Term or the court in which the trial was had. He stands upon the dismissal of the complaint as entitling him to a judgment, and his-motion should have been made where the cause was tried.

But, as before stated, there was no trial of the cause. It is an equity suit in which a trial cannot be had elsewhere than in that branch of the court having cognizance of such causes. Although it is such a suit, yet the parties are entitled as matter of right to a trial by jury of ' the issues / but that does not change the inherent nature of the action nor authorize the justice at the Trial Term to- dismiss the complaint or make a final determination of the action. The issues may be tried upon the pleadings.or on framed issues, but it is a trial of issues only, preliminary to the hearing of the cause, after which the final judgment can be directed at the- Special Term and nowhere else. The verdict is binding on the court at Special Term as the trial by jury is a matter of right; but before any judgment can be pronounced the court at Special Term must act on the whole case. Nothing has been changed in this regard by the abolition of the Circuit Courts and the institution of the new judicial system. There is but one Supreme Court, but its functions are exercised in different branches adapted to the transaction of different kinds of business, and equity causes must be disposed of in the branch of the court appointed to hear them. No trial has, therefore, been had' of this cause, and it was in no condition for a motion for an extra allowance. Costs had not been allowed, nor could they be until the case was brought to a hearing before a justice authorized to make a final determination and to-exercise the discretion residing in him to grant Or withhold costs in an equity suit.

The order must be reversed, with ten dollars costs, and the motion denied, with ten dollars costs.

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

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