In re Probate of the Last Will & Testament of Lawler

Decree reversed on the law and new trial granted, with costs to the appellants to abide the event. Memorandum: Webelieve 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.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.