I agree with my brother Clarke that the right to a trial by jury of an issue of adultery in an action for divorce is expressly provided for by law, and that either party to this action had an absolute right to a trial of that issue by a jury. The way in which such a trial is to be had and the time within which the application for such trial is to be made is, however, to be established by law, and it seems to me entirely clear that the Legislature had the power to provide the method by which a party demanding such a jury trial should proceed in the enforcement of his right.
Section 1757 of the Code of Civil Procedure provides that “ If the answer puts in issue the allegation of adultery, the court must, upon the application of either party, or it may, of its own motion, make an order directing the trial, by a jury, of that issue; for which purpose the questions to be tried must *241be prepared and settled, as prescribed in section nine hundred and seventy ” of the Code. There can be no doubt, I think, but that this provision prescribed the method by which a party to such an action who desires a trial by a jury must proceed. A motion must be made to have the issues to be tried by a jury plainly stated for that purpose. An action for a divorce is an action in equity by which the equitable power of the court is necessarily exercised in the final judgment. The only issue that the law requires to be tried by a jury is the issue of adultery. Either party who demands as a matter of right a trial of that issue must make a motion to have the issue settled, and the issue, thus settled, must be tried by a jury, or the court of its own motion, when the case comes on for trial, may, by order, settle the issue to be tried and send it to be tried by a jury. Section 970 of the Code of Civil Procedure provides that “ Where a party is entitled by the Constitution, or by express provision of law, to a trial by a jury, of one or more issues of fact, in an action not specified in section nine hundred and sixty-eight of this act, he may apply, upon notice, to the court for an order, directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly. ” In this section, which thus regulates the procedure in an action for divorce, where either party demands that the issue of adultery should be tried by a jury, there is no provision as to when this motion must be made. To enforce the right to a jury trial, however, a party to such an action must make the motion that the issues be settled, and if he fails to make that motion within the time at which such a motion may be made by law, or by the General Buies of Practice, the action may be tried by the court without a jury. The Code simply provides that a party seeking to enforce that right must make a motion to have the issues settled. The time within which that motion must be made not having been fixed by the Legislature, the time when the motion was to be made was left to be fixed by the General Buies of Practice. Whatever may have been the law prior to 1877, that the Legislature did not since September 1, 1877, when section 970 of the Code of Civil Procedure took effect, intend to settle that question appears by the statutes *242hereinafter set forth. By the Code of Remedial Justice (Laws of 1876, chap. 448, § 970) it was provided that “Notice of the application must be served, within twenty days after joinder of issue. The party omitting to serve the notice within that time, is deemed to have waived his right to a trial by a jury,” etc. These provisions were repealed by subdivision 218 of section 1 of chapter 416 of the Laws of 1877, and the section was amended so as to provide that the application should be “ upon notice.” The act of 1877 also changed the name of the statute to the Code of Civil Procedure and provided that it should, so far as here applicable, take effect September 1, 1877. (See Laws of 1876, chap. 448, § 1496; Laws of 1876, chap. 449, § 1; Laws of 1877, chap. 416, §§ 1, 4; see, also, Code Civ. Proc. § 3356.) By chapter 208 of the Laws of 1891 section 970 of the Code of Civil Procedure was amended so as to provide that either party may apply upon notice at any time to the court for an order directing all issues or questions to be distinctly and plainly stated for trial accordingly, thus allowing a motion to be made at any time before the actual trial; but by chapter 188 of the Laws of 1892 this section was amended by striking out the words “ at any time,” simply providing that the party may apply upon notice to the court for an order directing all questions arising upon those issues to be distinctly and plainly stated for trial accordingly, without any provision for the time within which such a motion was to be made. Before the amendment of rule 31 of the General Rules of Practice, which took effect September 1, 1910, there was no express provision regulating the time within which such a motion should be made in a case where a party had a right under the Constitution or express provision of law to a jury trial, except as such a provision existed or may have existed prior to the Code of Civil Procedure, and none of the authorities upon which my brother Clarke relies passed upon the question as to whether the Legislature or, in the absence of action by the Legislature, the convention of justices assigned to the Appellate Division had power to limit the time within which such a motion must be made. The Legislature having failed to prescribe the time within which such a motion must be made to entitle a party to an action for *243divorce to a jury trial, I think the convention of justices assigned to the Appellate Division had power to prescribe that time. This was a mere question of practice. The Legislature prescribed that to entitle a party to a jury trial in such an action, the party must move for an order settling the issues, but failed to prescribe the time within which such a motion must be made; and by the amendment of the Code passed in 1892, to which attention has been called, it appeared that the Legislature intentionally struck out a provision which allowed a motion to be made at any time, leaving the question of time within which such a motion must be made to be regulated by the General Eules of Practice. By section 94 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) the convention of justices assigned to the Appellate Division is required to establish rules of practice not inconsistent with the Judiciary Law or the Code of Civil Procedure which should be binding upon ah the courts in the State and all the judges and justices thereof, except the Court for the Trial of Impeachments and the Court of Appeals. And it is settled that these rules have the effect of a statute so far as they are not inconsistent with the Constitution, the Judiciary Law or the Code of Civil Procedure, and under the provisions of these rules the practice, so far as it is not specially regulated by the Code of Civil Procedure, is regulated.
The sole question, therefore, is whether rule 31, as amended in 1910, providing that when a motion is made under section 970 of the Code of Civil Procedure it must be made within twenty days after the case is at issue, is inconsistent with the Judiciary Law and the Code of Civil Procedure, and it seems to me clear that it is not. As before stated, there is no provision of the Code regulating the time within which a motion to frame issues must be made. It is quite clear that a party would not have a right to notice an action for divorce for trial before a jury without obtaining such an order. The fact that he is required to make a motion and have the issues stated did not in any way impair his right to have the issues of adultery tried by a jury; and, if that is so, certainly a provision requiring him to make such a motion within a time specified does not at all impair his right to a trial by a jury; and as the convention *244of justices assigned to the Appellate Division had the power to make all rules regulating the practice — and this is clearly such a rule—not inconsistent with the Code, it seems to me that this question of time within which to make the motion was one left expressly by the Legislature for the consideration of the convention of justices assigned to the Appellate Division, and a rule legally made by it, providing for the time within which such a motion was made, was within its jurisdiction and was binding upon all the Supreme Court.
I think, therefore, that the rule was proper, that the motion was properly denied, and the order appealed from should be affirmed, with ten dollars costs and disbursements.
Scott and Hotchkiss, JJ., concurred; Clarke and Dowling, JJ., dissented.