In Re the Probate of the Will of MacKenzie

New York Court of Appeals

In Re the Probate of the Will of MacKenzie

6 N.E.2d 73, 272 N.Y. 403, 1936 N.Y. LEXIS 918

CourtNew York Court of Appeals

DecidedDecember 31, 1936

StatusPublished

Cited by5 cases

This text of 6 N.E.2d 73 (In Re the Probate of the Will of MacKenzie) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re the Probate of the Will of MacKenzie, 6 N.E.2d 73, 272 N.Y. 403, 1936 N.Y. LEXIS 918 (N.Y. 1936).

Pincite

Opinion

Per Curiam.

Until a jury has agreed upon a verdict upon the issues submitted to it, a verdict upon other issues directed at the trial is not embodied in any order or decree or judgment which constitutes a judicial determination of such issues. Until then it remains merely a ruling made in the course of the trial. Section 463 of the Civil Practice Act which, by section 69 of the Surrogate’s Court Act, is made applicable to trials in the Surrogate’s Court, provides that after disagreement of a jury a new jury shall be empanelled “ and the same proceedings must be had before the new jury as if it was the jury first empaneled.” In accordance with the provisions of the statute, at the new trial every issue may be litigated again as if there had been no previous trial.

The order of the Appellate Division and that of the Surrogate’s Court should be reversed, without costs, and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion. The question certified should be answered in the negative.

Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Crane, Ch. J., Loughran and Finch, JJ., dissent.

Ordered accordingly.

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Per Curiam.

Until a jury has agreed upon a verdict upon the issues submitted to it, a verdict upon other issues directed at the trial is not embodied in any order or decree or judgment which constitutes a judicial determination of such issues. Until then it remains merely a ruling made in the course of the trial. Section 463 of the Civil Practice Act which, by section 69 of the Surrogate’s Court Act, is made applicable to trials in the Surrogate’s Court, provides that after disagreement of a jury a new jury shall be empanelled “ and the same proceedings must be had before the new jury as if it was the jury first empaneled.” In accordance with the provisions of the statute, at the new trial every issue may be litigated again as if there had been no previous trial.

The order of the Appellate Division and that of the Surrogate’s Court should be reversed, without costs, and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion. The question certified should be answered in the negative.

Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Crane, Ch. J., Loughran and Finch, JJ., dissent.

Ordered accordingly.

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Bluebook (online)

6 N.E.2d 73, 272 N.Y. 403, 1936 N.Y. LEXIS 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-mackenzie-ny-1936.

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