(dissenting). The direction of a trial by jury of issues of fact in an equity action is placed in the discretion of the court by the explicit language of the Code provision. Code Civ. Proc. § 971. See, Randall v. Randall, 114 N. Y. 499, 21 N. E. 1020; Wright v. Nostrand, 94 N. Y. 31-41. The justice presiding at special term is closer within the atmosphere of the action than the appellate court, dependent solely upon the printed record for its information. The exercise, therefore, of that discretion by the special term, ought not to be interfered with, except when its abuse is palpable. If there is an error of judgment, it can be remedied, as the right of the judge at the trial of the action to direct any •issue of fact to be submitted to a jury still exists. The object of the submission of any specific question to the jury is to aid the court in the final determination of the action, and the judge at special term may well deem it advisable to defer the whole matter until the trial, assuming that then it can be disposed of the more intelligently. In the present case there are apparently several questions of fact which it will be necessary to pass upon. It may be that at the trial of the action the justice presiding can sift these out and determine to better advantage which, if any, should be tried by a jury to assist in arriving at a correct solution of the case. Whatever may have influenced the decision of the court at special term, in my judgment there has been no such flagrant exercise of the discretion so peculiarly vested in it in applications of this character that we are called upon to reverse its order.
The order should be affirmed, with $10 costs and disbursements.