Warner v. Wigers — 4 N.Y. Super. Ct. 635

Majority

p. 635

Warner v. Wigers.

Headnote

Where there are issues of law and fact, and the cause is brought on for trial of the latter, the court will then determine whether it shall be tried before the issue of law is disposed of.

Ilf tried without objection, it will be deemed to have been first tried by the order of the court.

February 9, 1849.

There were issues of law and of fact in this case. Both parties noticed the cause for trial at the trial term, and it was tried on the issue of fact, without objection. It was now contended that this was irregular, and that the verdict should be set aside, because the issue of law was not first disposed of, pursuant to section 206 of the cede of procedure. (Laws of 1848.)

after advisement with his associates, held that both parties having concurred in bringing on the trial of the issue of fact, thus consenting to that course; it must be deemed to have been tried first by the order of the court, within the meaning of the code.

He said that it was the opinion of all the justices of the court, and such will be the practice in future, that whenever a cause was moved on the trial calendar, in which there was an issue of law pending, the court will then determine whether the issue of fact shall be first tried or not. And it is not necessary to obtain a previous order on the subject.