ourt Act, by virtue of which the Surrogate is required to order a jury trial in a probate proceeding upon the demand of a party thereto. In such a case, since this legislative limitation of the Surrogate's power is authorized by the Constitution, the verdict of such a jury is conclusive ( Matter of Barlow, 180 App. Div. 860). By the same section, the Surrogate is authorized in his discretion to order a jury trial even without such demand, but it has repeatedly been held in such case that the jury's verdict is advisory only ( Matter of Boyle, 242 N.Y. 342, 346; Matter of Blair, 242 App. Div. 689; Matter of Erlanger, 136 Misc. 784, 791, affd. 229 App. Div. 778; Matter of Raymond v. Davis, 220 App. Div. 480, revd. on other grounds 248 N.Y. 67; Matter of Barlow, supra; Matter of Doherty, 155 Misc. 396, 398; 1 Butler on New York Surrogate's Law and Practice, § 473; as to other civil courts, see Civ. Prac. Act, § 430; McKenna v. Meehan, 248 N.Y. 206, 214; McClave v. Gibb, 157 N.Y. 413, 420; Randall v. Randall, 114 N.Y. 499). In New York County, the Surrogate may transfer such a probate proceeding to the Supreme Court for trial. Only where the case is transferred to another court, and the verdict has not been set aside by the judge before whom the proceeding was tried, does the Legislature provide that the verdict of the jury shall be conclusive upon the Surrogate, and it could hardly be otherwise, for the Surrogate himself could not very well determine issues which were not tried before him.

30 CJS page 904, section 510. Prondzinski v. Garbutt, supra; 19 Am Jur page 277, section 404; 53 Am Jur pages 780-781, section 1124. See also Farnsworth v. Whiting, 106 Me. 430, 76 A. 909; Colie v. Tifft, 47 N.Y. 119; Randall v. Randall, 114 N.Y. 499, 21 N.E. 1020. It naturally follows that where an advisory verdict has been returned the trial court has a broad discretion in determining whether a new trial should or should not be had. Anno. 156 ALR pages 1161-1162.

The opinion then goes on to say: "If this were an equity action, the court should exercise its discretion and send the question to a jury." There can be no question that the court below could, in its discretion, and on its own motion, make the order appealed from. (Civ. Prac. Act, § 430; Randall v. Randall, 114 N.Y. 499.) And we would not be disposed to hold it an abuse of discretion.

(Code Civ. Proc. § 971. See Randall v. Randall, 114 N.Y. 499; Wright v. Nostrand, 94 id. 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.