St. John v. Coates — 9 N.Y.S. 934

Majority

p. 934

St. John v. Coates et al.

(Supreme Court, Special Term, New York County.

February, 1890.)

Headnote

Equity—Reforming Issues for Jury—Powers of Special Term.

The supreme court at special term may reform issues which have been sent to be tried by a jury, by striking out such as are immaterial, though the parties have consented that such issues should be tried, and the general term has decided that the circuit court has no power to refuse to try the issues as they are framed.

Action by Chauncey St. John against Howard W. Coates and Benjamin C. Wetmore, executors, etc., of George H. Peck, deceased. Plaintiff moves to reform the issues framed and sent on for trial by a jury. For appeal from the order at circuit striking out some of the issues, see ante, 202.

Lockwood & Post, for plaintiff. John H. Post, for defendants.

No reason is assigned why the court at special term cannot reform the issues which were sent to be tried by 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 Yan 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, would only embarrass the case, would not subserve any useful purpose, but only tend to obstruct the course of justice. The motion i% granted.