Brinkley v. Brinkley
New York Supreme Court
Appeal from an order of the special term in an equity case directing, of its own motion, certain issues to be sent to a jury after the case had been tried and finally submitted for decision. The action was brought for a limited divorce and alimony.
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Appeal from an order of the special term in an equity case directing, of its own motion, certain issues to be sent to a jury after the case had been tried and finally submitted for decision. The action was brought for a limited divorce and alimony. The questions raised by the pleadings are: 1. The residence of the plaintiff. 2. Whether there was a marriage. 3. Whether there was an abandonment. 4. Whether there was another action pending for the same cause in the courts of Tennessee F On the 13th of August, 1872, a motion was made to settle these issues and send them to a jury, which was…
1Opinion of the CourtBarrett, J.
The question presented by this appeal'is, whether ’the court at "special term, after trying an equity case, which remains in its hands under advisement, has power of its own motion to direct certain issues therein to be passed upon by a jury.
*503If, under similar circumstances, the late court of chancery was authorized to direct a feigned issue, we think the question must he answered in the affirmative; for the reason that, in our judgment, the Code of Procedure has not changed the former practice, except so far as to substitute a simple interrogatory for the legal fiction of a wager. Section 72,…
2Cases cited3 opinions
- Gardner v. GardnerCourt for the Trial of Impeachments and Correction of Errors · 1839
- Snell v. LoucksNew York Supreme Court · 1852
- Belmont v. PonvertThe Superior Court of New York City · 1866