A careful consideration of this matter leads me to the conclusion that a trial by jury of the controverted questions of fact herein cannot be granted. The proceeding was brought prior to September first, and thus comes directly under the provisions of section 2771 of the Code, as amended and revised by chapter 443 of the Laws of 1914, which, so far as material, are as follows: “ Nothing in this chapter shall repeal * * * nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect, and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act.”
Under the established practice at the time when this proceeding was brought, the surrogate had no power to try controverted questions of fact with a jury, and hence, so far as this proceeding is concerned, it would seem that he has no power to direct such a trial. Counsel urges that inasmuch as section 2653-a of the Code has been repealed by the law above referred to, which took effect September 1, 1914, he may have lost his right to a jury trial under that section in the Supreme Court because he had not brought his action prior to said date. In other words, that if the surrogate cannot give him a jury trial in the Surrogate’s Court because he brought his proceeding in the Surrogate’s Court before September first, and the Supreme Court cannot give him a trial in that court because he did not begin his action in that court prior to September first, he would in fact be deprived of a trial of the issues before a jury. I cannot, of course, on this application, pass upon the applicant’s right to a trial under section 2653-a in the Supreme *430Court. That is a matter which must be decided by the Supreme Court itself, but whether or not such a right existed could not affect the power of the surrogate to grant a jury trial. That, power must be found in the statute. The statute to me seems clear that with reference to n proceeding pending before September first the surrogate has no such power, and I must, therefore» deny the application for jury trial herein.
Decreed accordingly.