Elizabeth Brinkley Respondent, v. Hugh L. Brinkley, Appellant

Elizabeth Brinkley Respondent, v. Hugh L. Brinkley, Appellant. (Argued February 34, 1874; decided March 24, 1874.) After a trial of an equity action by and a submission thereof to the court, it has power while it remains in its hands under advisement, of its own motion, to direct certain issues therein to be passed upon by a jury, and an order to that effect is not reviewable by this court. This power is not restricted or affected by section 367 of the Code requiring the judge to make and file his decision within a specified time; this is neccesarily with the implied qualification that no other disposition is made of the case. Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term directing that certain specified questions of fact herein be tried by a jury. (Reported below, 2 S. 0. R. [T.&C.], 501.) This was an action for limited divorce and alimony. It came on for trial at Special Term and was tried and submitted. Subsequently the court, of its own motion, made an order directing that certain specific questions of fact stated in said order be tried by a jury. Wm. Henry Anthon for the appellant. After the trial before the judge had commenced, it was too late for either party to apply for issues. (People v. Albany R. R. Co., 7 Abb. [U. S.], 265 ; O'Brien v. O'Brien, 10 Abb., 106.) The judge had not power to direct issues to be framed. (O'Brien v. Bows, 4 Bosw., 663; Code, § 267; Coit v. Bland, 12 Abb., 463;. Trent v. Hanning, 10 Ves., 495; Richards r. Byms, Barnardist. Ch., 90. W. A. Beach for the respondent. [MAJORITY — Church, Ch. J.] Church, Ch. J. The Code, section 72, Substitutes an order stating the questions of fact to be tried for a feigned issue as it then existed. Under- the old practice a feigned issue might be directed at any time before judgment, and as well upon the motion of the court as upon application of a party. The power was sometimes exercised after trial and submission to the court. (Clarke, 580 ; McC. & Y., 436.) The mode of taking evidence under the old practice may have furnished one reason for the exercise of the power which does not now exist,, but the power itself is not abrogated. It is not restricted by the Code. Section 267 does not restrict it nor relate to it. That section requires the judge to make and file his decision within a specified time* but necessarily with the implied qualification that no other disposition is made of the case. It is competent for the court to order a reargument, to open the case for further proof, or to allow an amendment of the pleadings, or to direct a trial by jury or referee of some controverted question of fact, or to state an account and the like. The right of the court to exercise the powers theretofore exercised by the Court of Chancery in these respects was not aimed at. The section only provides for the form of making the decision and the time of filing the same. We concur with the opinion of Barrett, J., in the court below. The order may operate oppressively upon the defendant in this particular case, but as the judge had the power to make the order, it is not appealable to this court. We cannot review the propriety of its exercise. The appeal should be dismissed with costs. All concur. Appeal dismissed.