Appeal, by permission, from an order of the Supreme Court at Special Term (Cholakis, J.), entered October 14, 1982 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied respondent’s motion for a nonjury trial. On June 19, 1980, petitioner was appointed to the position of senior sanitary engineer in the Department of Environmental Conservation. This position was subject to a 26- to 52-week probationary term. On December 5, 1980, petitioner received a written evaluation of his work which recommended that the probationary period be terminated. Respondent, however, continued petitioner as a probationer until June 2, 1981, when a second written evaluation of petitioner’s work recommended that his employment be terminated. After his job was terminated petitioner commenced this CPLR article 78 proceeding for judgment reinstating him, alleging that respondent violated the appropriate rules and regulations (4 NYCRR 4.5 [a] [5] [iii]) in failing to exercise the appropriate degree of supervision and assistance as to his probationary period. Special Term ordered the proceeding transferred to the general calendar for trial. Respondent moved for an order directing that the matter be tried before the court without a jury. The motion was denied and this appeal by respondent ensued. Since a probationary employee may be discharged at any time without a hearing (Matter of De Milio v Borghard, 55 NY2d 216; Matter of Talamo v Murphy, 38 NY2d 637), and since an article 78 proceeding in the nature of certiorari arises only when a hearing is required, the sole issue for review is whether an article 78 proceeding, which we must regard as in the nature of mandamus to review (Matter of De Milio v Borghard, supra), as here, entitles respondent to have the matter tried before the court without a jury. We conclude that it does not. While CPLR 7804 (subd [h]) requires that where a triable issue of fact is raised “it shall be tried forthwith”, no express provision is made for trial by jury. However, section 1295 of the Civil Practice Act (L 1937, ch 526), the predecessor to CPLR 7804, stated: “If a *873triable issue of fact is duly raised, it shall be forthwith tried before a court sitting without a jury, before a referee, or, where the proceeding is to review a determination or to compel performance of a duty specifically enjoined by law * * * before a court and a jury” (emphasis added). With respect to mandamus proceedings section 1333 of the Civil Practice Act (L 1920, ch 925), the predecessor to section 1295 of the same act, stated that “An issue of fact, joined as prescribed in this article, must be tried by a jury, unless a jury trial is waived” (emphasis added). In our view, CPLR 7804 was intended to continue all rights to jury trial set forth in section 1295 of the Civil Practice Act. The CPLR Advisory Committee, in commenting on CPLR 7804, stated: “There is a right to trial by jury in proceedings in the nature of mandamus [citations omitted] and on certain issues in proceedings in the nature of certiorari [citation omitted] but not in proceedings in the nature of prohibition” (NY Legis Doc, 1958, No. 13, p 404). While it is true that the advisory committee also stated in the same paragraph from which the above citation was extrapolated that “The proposed subdivision does not state in what actions jury trial is available, or what questions are to be submitted to the jury since these are matters which are governed by the historical rights under the writs”, the inference is inescapable that the advisory committee felt that the statutory command that issues of fact “shall be tried forthwith” clearly evidenced the legislative intent that the historical right to have such issues tried before a jury be maintained. Further, CPLR 410, which applies to all special proceedings, including those commenced pursuant to article 78, is fully consistent with the retention of all historical rights to jury trials. It states: “If issues [of fact] are triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issues” (emphasis added). We reject respondent’s view that since CPLR 7804 (subd [h]) is silent with respect to those actions in which a jury trial is available, resort to CPLR 4101 (subd 3), which provides that issues of fact shall be tried by a jury in “any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury”, compels the conclusion that no right to jury trial in a mandamus proceeding to review exists where, as here, there is no historic constitutional right to a jury trial and no express statutory declaration to that effect. Without deciding whether such an argument would prevail if we were considering the right to jury trial in certiorari proceedings, we conclude that it is without merit in a CPLR article 78 proceeding in the nature of mandamus to review. Order affirmed, with costs. Mahoney, P. J., Sweeney, Kane and Levine, JJ., concur.