8 How. Pr. 244 | N.Y. Sup. Ct. | 1852
It is objected against this motion that the trial, though before the Judge alone, was the same as if by a jury, that having been waived under the Code. That the Judge having been thus substituted for the jury, the cause is in the same situation as if tried by a jury, and that Moyer having died before a decision was pronounced by the judge, it is as if he had died before verdict, and that consequently no judgment can be rendered. (2 R. S. 308.)
I do not agree with the counsel in his construction of that statute. Both causes came up for hearing and final adjudication on the 13th of June, 1851. The court passed upon both, and ordered judgment in the first cause, on the report of the referee, which was the same as if after verdict. No further proofs were taken in the first cause, nor does it appear that any were taken in the second. The court took the papers, reserving his decision as 'on a case or bill of exceptions, or on hearing, on a report of referee on pleadings and proofs, of -two causes in equity. I do not think the statute has any application to such a case.
It is more like that class of cases, where a party after having obtained a verdict or non suit, dies while the cause is sub judice. The court will, in all such cases, without regard to the lapse of time, allow the judgment to be entered up, as of a t.erm {or a time now,) when the party was alive, which in this case would be on the 13th of June, 1851. Rightmyer agt.
In Spalding agt. Congden, the court said the statute did not relate to, or control cases where there was a non suit—it was confined to cases after verdict, and to pleas of confession. Here was virtually a non suit and no verdict—a decree or order that the hill be dismissed.
It would seem to be proper in a case like the present, for the court if they have it, to exercise the power. There has been a full hearing and examination by the Judge, before whom the causes were heard. The effect of denying the motion would result in the necessity of another trial before the same tribunal, where a like result would probably follow.
The administrator can have his remedy by appeal from the judgment of Judge Willard, if he or his counsel deem it advisable, without subjecting both parties to the delay and expense of another formal trial, at the circuit or special term.
I think this within the principle of the cases cited, and accordingly grant the motion.
