Opinion
September 27, 1939.
Present — Sears, P.J., Crosby, Lewis, Taylor and Dowling, JJ.
Decree reversed on the law and new trial granted, with costs to the appellants to abide the event. Memorandum: We believe the surrogate erroneously granted the proponents' motion to limit the issues to be determined by the jury. ( Matter of Mackenzie, 272 N.Y. 403.) Chapter 613 of the Laws of 1937, which amended section 463 of the Civil Practice Act, was designed to effect a statutory change in the rule of the Mackenzie Case ( supra). The statutory change thus made, however, applies only in the event a jury fails to agree upon a verdict, not to the situation with which this appeal is concerned where the decree reversed ( 253 App. Div. 120) was entered upon a jury's verdict. (See, also, Matter of Gallo, 252 App. Div. 861, decided after the effective date of the statutory amendment mentioned above.) All concur. (The decree admits a will to probate.)