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. *Page 406
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