| The Superior Court of the City of New York and Buffalo | Jul 16, 1891
On the trial of this action before a jury, after the close of the testimony on both sides, the counsel for the defendant summed up his •case, and discussed the evidence fully, and the plaintiff’s counsel began summing up, and, after commencing his argument to the jury, the judge presiding at the trial requested the counsel-to cut short his argument to the jury, ■as lie desired an early adjournment. The counsel did as requested, the court charged the jury; and they returned a verdict in favor of the defendant. The ' plaintiff then made a motion before the trial judge to set aside the verdict of the jury on the ground that he did-not have a full and fair opportunity to present his view of the evidence in the case to the jury, and that the interruption from the court distracted his attention from the facts in the case, confused his thoughts, and prejudiced him and his client before the jury. The ■court, after listening to affidavits setting forth these facts, set aside the verdict, and ordered a new trial on the ground .that the plaintiff probably was prejudiced, and that the jury, without understanding the reason for the counsel's abruptly closing his argument, drew unfavorable inferences that the ■counsel had but' little faith in his case, and did not expect a verdict at their hands. The defendant appealed from the order setting aside the verdict and granting a new trial, and now insists- that the judge acted without any sufficient evidence, and had no authority to grant the plaintiff’s motion. It is not doubted that the court-may entertain a motion to set aside a verdict on the minutes for causes other than those mentioned in the Code of Civil Procedure, if substantial justice will be promoted by so doing. Emmerich v. Hefferan, 33 Hun, 54. Such motions are addressed to the sound discretion of the court; and if the court can see that the party has'been prejudiced by some inadvertent remark or suggestion of the court, such discretion may be properly exercised. Platt v. Munroe, 34 Barb. 291" court="N.Y. Sup. Ct." date_filed="1861-01-01" href="https://app.midpage.ai/document/platt-v-munroe-5460090?utm_source=webapp" opinion_id="5460090">34 Barb. 291. The order made granting a new trial was not predicated on error appearing in the case, and could not have been made without making and settling a case, nor upon newly-discovered evidence, but rather on an inadvertence on the part of the trial judge which might and probably did prejudice the plaintiff’s case before the jury. We do not think the criticism of the defendant’s counsel of the ruling of the trial judge is appropriately made, or justified by the facts. He seems to have .misapprehended the ground upon which the order was placed. It was an ap