Citation Numbers: 1 How. Pr. (n.s.) 26
Judges: Reynolds, Wyck
Filed Date: 12/15/1885
Status: Precedential
Modified Date: 2/5/2022
The defendant’s attorney has mistaken the practice. The action is an equitable one. (Hewlett agt. Wood, 62 N. Y., 75.) It is true that a trial of the issues by jury is a matter of right, but the very section of the Code of Civil Procedure (sec. 1544) which provides this, shows that it is not to be treated as an ordinary common law action. Issues may be stated as provided by section 970, or they may come
Motion granted with ten dollars costs.
After entry of the order on this decision vacating the judgment, the plaintiff’s counsel moved, before judge Augustus Van Wyck, under the Code of Civil Procedure (secs. 1561 and 1546), for the appointment of a referee to ascertain the liens on the lands admitted to be held by the parties in common and whether an actual partition could be had.
Mr. Henderson Benedict, for the motion, argued that the judgment was merely vacated for its informality, with the privilege of recording a formal one, and that the issues could not be-referred as the Code of Civil Procedure (sec. 1544) prescribed á jury trial.
Mr. T. N. Melvin, in opposition to the motion, argued that, vacation of the judgment opened the default and that the issues-should be referred to the referee.
The default of plaintiff at the trial term concludes plaintiff in the matter of the premises which the answer denies are owned in common, and the only premises-
Motion granted.