In the Matter of the Probate of the Will of Robert E. Hopkins, Deceased. Robert E. Hopkins, Jr., Appellant; Fanny W. Hopkins et al., Respondents

In the Matter of the Probate of the Will of Robert E. Hopkins, Deceased. Robert E. Hopkins, Jr., Appellant; Fanny W. Hopkins et al., Respondents. Appeal—When Appellate Court Mat Make Order Directing Trial by Jury of Questions of Fact. Under section 2588 of the Code of Civil Procedure an appellate court must “make an order directing the trial by a jury of the material questions of fact arising upon the issues between the parties,” where its reversal or modification of a decree is founded upon a question of fact, and it may do it in any other case where, in its opinion, it would seem that the ends of justice might be best promoted by such a course. (Submitted October 5, 1903; decided November 17, 1903.) Motion for reargument. (See 172 N. Y. 360.) Joseph MiddlebrooTc for motion. Qlarence S. Da/oison, Qha/rles Blandy and Andre%o J. Ship-mam,, opposed. [MAJORITY — Parker, Ch. J.] Parker, Ch. J. The motion for reargument must be denied, without costs, on the ground that the question presented is no longer open for discussion in this court. In reported and unreported cases we have often decided — too often to now discuss the question — that since the enactment of the statute, now to be found in section 2588 of the Code, an appellate court must “ make an order directing the trial by a jury of the material questions of fact arising upon the issues between the parties ” where the reversal or modification of a decree by the appellate court is founded upon a question of fact, and that the appellate court may do it in any other case where, in its opinion, it would seem that the ends of justice might be best promoted by such a course. O’Brien, Bartlett, Haight, Vann, Cullen and Werner, JJ., concur. Motion denied, without costs.