The action is for a foreclosure of a mortgage; the defense is that the mortgage was given without consideration and was obtained through fraud and under duress.
The defendant made timely application to the court under the provisions of section 971 of the Code of Civil Procedure for the settlement of questions to be tried by a jury. The motion wTas denied, “ owing to the condition of the civil calendar ” of the court in which the action w&s commenced.
Section 971 of the Code reads as follows: “ In an action where a party is not entitled, as of right, to a trial by a jury, the court may, *366in its discretion, upon the application of either party, or without application, direct that one or more questions of fact, arising upon the issues, be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly.” This is a substitute for the former practice of trying feigned issues in actions in equity. (Carroll v. Deimel, 95 N. Y. 252.) "Both under the old practice in equity and under the Code it is contemplated that the court shall exercise its discretion whether or not to settle issues upon the basis of the nature of the action and of the defense and the circumstances disclosed by the issues, rat,her than upon the basis of the condition of the jury calendar of the court.
The order should be reversed, with costs, and the motion remitted to the County Court of Kings county for further proceedings in accordance herewith
Woodward, J., concurred.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.