The order appealed from should be reversed, and an order submitting the two questions to the jury granted. The relief sought by the motion at special term rested largely in the sound discretion of that court. Such discretion is, however, subject to review by this court. The discretion was not wisely exercised in this instance. It is not necessary to recite in detail the allegations contained in the pleadings. The matter covered by the two questions relates to transactions with a prominent mem*66ber of the bar, and is likely to be sharply contested. It is not well to put the whole responsibility of deciding these issues upon the justice who is called upon to try the case. He should have the judgment of a jury to aid him, and, while the denial of the relief asked for at the present time would not prevent the trial justice, upon application at the trial or of his own motion, from directing such issues to be submitted to a jury, still it is better that the matter be provided for here, in order that there may be no delay at special term when the case comes on for trial. We dislike to interfere with the discretion exercised by justices at special term, but we cannot well avoid doing so in this instance.
The order should be reversed, with $10 costs and disbursements to appellant, and an order made for the submission to a jury of the questions, Nos. 2 and 3, submitted by the respondent at special term. All concur, excepting SPBING-, J., who dissents in a memorandum.