Blunt v. Hibbard

3 N.Y.S. 121, 1888 N.Y. Misc. LEXIS 500

Opinion

Bookstaver, J.

The action is brought to set aside a certain composition "deed and release on the ground of fraud; also to vacate an order discharging an assignee on the ground of fraud, and to obtain a decree requiring all the defendants to pay the plaintiff his claim against the debtors, and that a receiver be appointed. The issues presented for trial by a jury are 33 in number. This fact alone, it seems to me, would be a sufficient reason for not sending them to the jury. They are so many that the jury would necessarily be confused; besides, many of the issues presented have been determined as to some -of the parties in another action, and intricate questions of law must arise upon •the trial of these issues. While any judge would be glad to be relieved of the ■responsibility of determining the questions of fact, I do not think his labors in the end would be the less; and I am convinced that the rights of the parties would be better protected if a judge were to determine all of the issues, both of fact and of law. Besides, the motion was not made within 10 days after issue joined, and I think it is too late, under rule 31. Notwithstanding defendants’ contention, I think the action is one peculiarly within the province of a court of equity, and the sending of issues to a jury for trial is therefore discretionary, (Code, §§ 969-971;) and where such intricate questions are involved, I think, the discretion should not be exercised, (Acker v. Leland, 109 N. Y. 5, 15 N. E. Rep. 743.) The motion is therefore denied, without-cost,s.