In re Bitter's Estate

154 N.Y.S. 975

Opinion

COHALAN, S.

The will of the decedent has been offered for probate, and the petitioner has asked permission to- intervene and to file objections thereto. The petitioner alleges that he is a son of the decedent. The widow of the decedent has filed an answer, in which she denies that the petitioner is a son of the decedent, or that he is an heir at law or next of kin of the decedent. As the status of the petitioner must be established before he is allowed to intervene (Matter of Hamilton, 76 Hun, 200, 27 N. Y. Supp. 813), it is necessary to determine the question of his alleged relationship to the decedent.

[1, 2] Whether this issue should be determined upon a hearing before the court, or before the court and jury, is the preliminary question submitted to the court. Under section 2537, C. C. P., whenever the order or decree of the court will determine an issue of fact “as to which any party has a right of trial by jury in any court,” such trial shall be had according to the practice of the court. Section 2, art. 1, of the Constitution of the state of New York provides that “the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” I have been unable to discover any reported case in which an issue similar to that presented by the pleadings in this matter was tried by a jury prior to the adoption of the Constitution of 1846. I will therefore hold that the issue raised by the pleadings is not one of which the petitioner has a constitutional right of trial by jury. The matter will be set down for hearing before me on June 10, 1915, at 10:30 a. m.

Serve notice of hearing and file same, with proof of service thereof, with my secretary, on or before June 8, 1915.