(202 N.Y.S.) ture enacted section 2653-a of the Code of Civil Procedure, which was contained in article 2 of title 3 of chapter 18 of the Code relating to revocation of probate. That section provided that any one interested in a will might cause the validity of the probate thereof to be determined in an action in the Supreme Court for the county in which such probate was had, provided such action should be commenced within two years after probate. Section 2653-a of the Code, as enacted in 1892, stood unamended when the Constitution of 1894 took effect on January 1, 1895. It is argued that the contestants had the right on January 1, 1895, under section 2653-a of the Code to a jury trial upon the issue as to whether or not the will of the testator was a valid one. This is not so. In the case of Lewis v. Cook, 150 N. Y. 163, 44 N. E. 778, Judge Gray, writing for the court, held that the section, as it was originally enacted, authorizing an action by a "person interested in a will" admitted to probate in this state, by which the validity of the will and its probate might be established and placed beyond attack by the heirs at law, refers only to a person who was interested in the maintenance of the will, and that the action could not be maintained by one claiming in hostility to it. It was pointed out in that opinion that this was a new remedy given to a person who took under a will, and that it was enacted for the purpose of offering such a person the right to get a decision which would be binding upon the heirs at law. It therefore definitely appears that these contestants had no right, at the time that the Constitution of 1894 took effect on January 1, 1895, to the particular jury trial provided by section 2653-a of the Code. The contestants, however, did have the right at that time to commence an action in ejectment, or the action for partition above referred to under section 1537 of the Code. Whatever right they then had under sections 2647 to 2653, inclusive, of the Code of Civil Procedure, to petition for the revocation of probate was taken away on September 1, 1910, by the repeal of said sections. See Laws of 1910, c. 578, §§ 4, 5. By chapter 598 of the Laws of 1897, section 2626 of the Code was amended so as to limit specifically the conclusiveness of the probate decree as to personalty by excepting an action brought under section 2653-a of the Code to determine the validity or invalidity of such will. By chapter 578 of the Laws of 1910 the Code was so amended that sections 2626 and 2627 were expressly repealed, and section 2625 was adopted. The latter section read: "A decree admitting a will of real or personal property, or both, to probate is conclusive as an adjudication of the validity of the will, and of the question determined under section twenty-six hundred and twenty-four of this act, except as in this chapter otherwise provided." The section referred to under the last phrase "except as in this chapter otherwise provided," is section 2653-a of the Code. By that time section 2653 had been so amended that a contestant or one claiming in hostility to the will could commence such an action. Section 2625 as thus enacted, making the decree of the surrogate conclusive, was construed in Wadsworth v. Hinchcliff, 218 N. Y. 589, 113 N. E. 488, as preventing an action for partition alleging a devise of real property to be void under section 1537 of the Code. It was there held 202 N.Y.S.-14 that the only remedy then existing was section 2653-a of the Code as amended by chapter 943 of the Laws of 1896 and by chapters 104 and 701 of the Laws of 1897. The only other limited provision for a jury trial in probate proceedings related to the county of New York, and even there the trial wast had in a court other than the Surrogate's Court. See Code Civ. Proc. § 2547, as amended by Laws 1886, c. 119; Laws 1895, c. 946, and Laws 1910, c. 576. By chapter 443 of the Laws of 1914 (amending Code Civ. Proc. c. 18) a new Surrogate's Code was enacted. This was in the nature of a general revision, and was evidently intended by the Legislature to furnish the only law on the subject. This act left out section 2653-a, and by well-known canons of construction it worked, by implication. a repeal of section 2653-a. See section 178 of Statutes and Statutory Construction as contained in 1 McKinney's Consolidated Laws of New York, 247 et seq. This new revision also for the first time provided for a jury trial in the Surrogate's Court. It first appears as section 2539 of the Code, and reads as follows: "The provisions of this act relating to trial by the court and a jury, or to a motion for new trial, shall apply to Surrogates' Courts and to the proceedings therein so far as they can be applied to the substance and subject-matter of such proceedings without regard to form, but the surrogate shall have no power to set aside a verdict or to grant a motion for a new trial in any proceeding in which the trial took place in a court other than the Surrogate's Court." Section 2538 contains, among other things, this provision: "In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same. The surrogate in such order must direct that such trial be had either before himself and a jury, or at a trial term of the Supreme Court to be held within the county, or in the County Court of the county." See, also, Laws 1915, c. 275, amending said section 2538. The provision for trial by jury, contained in section 2538 of the Code, now appears as section 68 of the Surrogate's Court Act, and reads as follows, the new part, which was added to the Code in 1915, being italicized: "In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, and in any proceeding for the probate of a will in which any controverted question of fact arises, the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same, and in any proceeding in which any controverted question of fact arises of which any party has or has not, constitutional right of trial by jury, the surrogate may in his discretion make such order without such demand. The surrogate in such order must direct that such trial be had either before himself and a jury, or at a trial term of the Supreme Court to be held within the county, or in the County Court of the county." (202 N.Y.S.) The second paragraph of section 2539 of the Code was changed, and is now found in section 69 of the Surrogate's Court Act. It reads: "The provisions of law relating to trial of a civil action by the supreme court and a jury, and to a motion for new trial, shall apply to Surrogates' Courts and to the proceedings therein so far as they can be applied to the substance and subject-matter of such proceedings without regard to form, but the surrogate shall have no power to set aside a verdict or to grant a motion for a new trial in any proceeding in which the trial took place in a court other than the Surrogate's Court." In the report of the commission to revise the practice and procedure in Surrogates' Courts, the commissioners stated: "Provision is made for trial by jury of any controverted question of fact in the adjudication of which any party has a constitutional right to such trial. This will prevent the multiplicity of trials which may now be had in probate proceedings and permit the surrogate to determine finally all the issues in respect to the validity of a will." See N. Y. Sen. Doc. 1914, vol. 11, No. 23, p. 1. The report contains a quotation from the opinion of Justice Follett in Bowen v. Sweeney, 89 Hun, 359, 366, 367, 35 N. Y. Supp. 400, 404, which was affirmed in 154 N. Y. 780, 49 N. E. 1094. Justice Follett there said: "It is apparent that under our boasted reform procedure a will relating to realty and personalty may be declared void because of the insanity of the testator, or for any other cause, in respect to one species of property and valid in respect to the other kind of property, upon the ground that the testator was sane, and so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the Surrogate's Court, and the decision is reversed by the Supreme Court, and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate's Court decreeing the will to be valid, the heir may, notwithstanding, retry the question as to the realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure by which judgments diametrically opposed to each other may be recovered in respect to the same will, does not lie with the courts, but with the Legislature." Apparently then, the act proposed was believed to meet the vice just discussed. I think, therefore, that the granting of a jury trial in the Surrogate's Court was for the purpose of avoiding multiplicity of suits, and was intended to vest in the surrogate and a jury a substitute for the existing right of a common-law jury in actions affecting real property devised by a will. Therefore the test which would be applied to the constitutionality of section 457-a of the Civil Practice Act is the same in this proceeding as would be applied were we reviewing an action in the Supreme Court after a trial by a common-law jury. I am not unmindful of the decision of this court in Matter of Burnham, 201 App. Div. 621, 194 N. Y. Supp. 811, affirmed by the Court of Appeals, 234 N. Y. 475, 138 N. E. 413. In that case this court reversed a decree of the Surrogate's Court of Westchester County denying probate of a will, and directed that the instrument be admitted to probate. This was done on the ground that the evidence was insufficient to submit the case to the jury on the question of the testamentary capacity of the testatrix in that case. This court held that a new trial should not be ordered simply because the surrogate was not asked to take the question from the jury. While it was pointed out in the decision of the Court of Appeals that the power of the Appellate Division to direct judgment de novo in probate cases had existed for a long time, the court said: "From the nature of things, this power is somewhat restricted by the provisions now made for jury trial in which controverted questions of fact actually arise. The disposition of such questions is for a jury"-citing Hagan v. Sone, 174 N. Y. 317, 66 N. E. 973, and Middleton v. Whitridge, 213 N. Y. 499, 108 N. E. 192, Ann. Cas. 1916C, 856. Under the old Code of Civil Procedure (section 2588) the practice was that when the appellate court (either the General Term or the Appellate Division of the Supreme Court) reversed or modified a decree of the Surrogate's Court in a probate case on questions of fact, the appellate court always directed a new trial before a jury. See Laws 1880, c. 178, § 2588, as amended by Laws 1895, c. 946. See, also, Code Civ. Proc. § 2771, added by Laws 1914, c. 443, as amended by Laws 1915, c. 274; Code Civ. Proc. § 2539, as added by Laws 1914, c. 443. Upon a review of the evidence in the proceeding at bar, it is apparent that there was an issue of fact to be tried. While all of the members of this court disbelieve the testimony of Schinzel that he purposely refrained from having the will duly published, still that question was one of fact for the jury, and his credibility was for the jury. It is conceded that the provisions of section 21 of the Decedent Estate Law as to the execution of a will were complied with, except as to publication. What, then, would be the rule as to the constitutionality of section 457a of the Civil Practice Act were this an action tried in the Supreme Court? In the case of Dwight v. Germania Life Ins. Co., 103 N. Y. 341, 358, 8 N. E. 654, 661 (57 Am. Rep. 729), it was said: "If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to direct a verdict." To the same effect, see Linkauf v. Lombard, 137 N. Y. 417, 33 N. E. 472, 20 L. R. A. 48, 33 Am. St. Rep. 743; Hemmens v. Nelson, 138 N. Y. 517, 529, 34 N. E. 342, 20 L. R. A. 440. As pointed out, however, in subsequent decisions, this language was generally used in connection with a reference to the old rule that a mere scintilla of evidence was sufficient to take the case to the jury, and that in the decisions just cited nothing more was intended than a repudiation of that rule. Fealev v. Bull, 163 N. Y. 397, 400, 57 N. E. 631. In 1901 the case of McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 68, 60 N. E. 282, 283, distinctly repudiated the apparent rule laid down in Linkauf v. Lombard and other cases, supra. In that case the court said: "It was assumed below that the plaintiff's evidence established a case which, undisputed, was sufficient to warrant a verdict in her favor: But the court said that at the close of the defendant's evidence the plaintiff's case had been so far overcome that a verdict in her favor would have been set aside as against the weight of evidence. Upon that alleged condition of the proof, it held that the trial court might have properly submitted the case to * (202 N.Y.S.) the jury if it saw fit, but that it was not required to as the verdict might have been thus set aside. The practical result of that decision, if sustained, is in every close case to vest in the trial court authority to determine questions of fact, although the parties have a right to a jury trial, if it thinks that the weight of evidence is in favor of one and it directs a verdict in his favor. The result of setting aside a verdict and the result of directing one are widely different and should not be controlled by the same conditions or circumstances. In one case there is a retrial; in the other the judgment is final. One rests in discretion; the other upon legal right. One involves a mere matter of remedy or procedure; the other determines substantive and substantial rights. Such a rule would have no just principle upon which to rest. "While in many cases, even where the evidence is sufficient to sustain it, a verdict may be properly set aside and a new trial ordered, yet that in every such case the trial court may, whenever it sees fit, direct a verdict and thus forever conclude the parties, has no basis in the law, which confides to juries and not to courts the determination of the facts in this class of cases. We think it cannot be correctly said, in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict. So long as a question of fact exists, it is for the jury, and not for the court. If the evidence is insufficient, or if that which has been introduced, is conclusively answered, so that, as a matter of law, no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it. But whenever a plaintiff has established facts or circumstances which would justify a finding in his favor, the right to have the issue of fact determined by a jury continues, and the case must ultimately be submitted to it." Later cases in the Court of Appeals, like Matter of Case, 214 N. Y. 199, 108 N. E. 408, have not whittled down this doctrine. In the case of Ridgely v. Taylor & Co., 126 App. Div. 303, 304, 110 N. Y. Supp. 665, 667, this court (Woodward, J., writing), after noting that' the appeal then written in was the third appeal before the court in the same case said: * To If "Section 2 of article 1 of the state Constitution provides that the 'trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,' language which could hardly be made stronger, and yet, if verdicts founded on sufficient evidence may be continually set aside because the trial justice, or those who pass in review upon the record, happen to differ with the jury as to the weight of evidence, the guaranty is hardly worth preserv ing in civil actions; the great privilege which those who emigrated to this country from England brought with them as their birthright and inheri-, tance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.' is a barren ideality subject to be overturned at will. be inviolate is to be unhurt, uninjured, unpolluted, unbroken. the provision of the Constitution is to remain 'inviolate forever,' it must not be violated either in form or spirit; there can be no justification where there is evidence to support a proposition, to continually set aside the verdicts of juries until a jury happens to be found to agree with the trial court. There is a place somewhere, where the spirit of the constitutional guaranty requires that the verdict of the jury shall be final; and where there has been a sufficient number of trials, under fair conditions, so that it cannot be presumed that the jury has been under the control of passion, corruption, or other improper motives, or has failed to give to the evidence proper consid-: eration it is the duty of the court to give effect to the verdict and to end the litigation." I am of the opinion that section 457-a of the Civil Practice Act is, within the reasoning of the foregoing authorities, unconstitutional. |