Borowsky v. Gallin , 110 N.Y.S. 818 ( 1908 )

Gaynor, J.:

It was in the discretion of the court below whether it should direct that the issues of fact, or any of them, should be sent to a jury trial (Code Civ. Proc. § 971). It was influenced to some extent in denying the motion by the condition of the jury calendar (it is over two years in arrears) as the memorandum filed with its decision shows. This was not improper. Indeed, motions like this are sometimes made hereabouts to avoid the speedy trial afforded by the equity calendar. A verdict for the defendant would not bind the court; it has the responsibility of giving judgment in the end, and the rule is for the court to try such cases without having its conscience enlightened or aided by a verdict.

The order should be affirmed.

High and Miller, JJ., concurred ; Hooker, J., read for reversal, with whom Woodward, J., concurred.