Dwight, C.

It is claimed by the defendant that there was a mistrial in this cause, or such an irregularity in the conduct of it that the judgment of the court below should be reversed.

The irregularity complained of consists in the fact that the judge submitted three questions to the jury without their going through the form of finding a verdict, either general or special, and on receiving affirmative answers to two of these questions, which made any finding upon the third unnecessary, proceeded to order the entry of judgment. The proceeding was plainly informal, and it is insisted that the irregularity was of such a kind as to amount to a mistrial. On this point is cited the case of Manning v. Monaghan (23 N. Y., 539). That case, however, does not closely resemble the case at bar in its facts. In that ease there were answers to specific questions not covering the whole case like a special verdict, and at the same time there was no general verdict. The case, in this condition, was referred to the court at General Term for judgment upon the answers and the questions of law arising in the cause. The court were of opinion that there was no verdict, general or special, but that even if it could be considered that there was a special verdict, motion for judgments must be made, in the first instance, at Special Term or at Circuit. The mistrial consisted in reviewing the case, in the first instance, at General Term. The cases referred to in the opinion of Denio, J., "sustain this proposition. (C obb v. Cornish, 16 N. Y., 602; Gilbert v. Beach, id., 606; Clew v. McPherson, unreported.) These decisions cannot be considered as disposing of the present question, which concerns the effect of this informality in the court of original jurisdiction. The mode of presenting a case for *84 review at General Term is so specifically pointed out in the Code, that the court felt constrained to follow it, partly on grounds of policy to promote regularity of practice.. (Per Denio, J., p. 544.) The case at bar is rather to be considered as within the rule in Barto v. Himrod (8 N. Y., 483, 485). In that case there was no general verdict, but simply a special finding by the jury of the value of .the property taken under a tax warrant, leaving all the other facts, upon which the legal rights of the parties depended, as stated in the pleadings. The Circuit'judge, on this state of the case, decided in the plaintiff’s favor, and judgment was entered on his decision, and an appeal then taken to the General Term in the usual manner.' The court, after careful consideration, agreed that the facts admitted by the pleadings, together with those found by the jury, presented the whole case in the proper' form for the consideration of the court. This case distinctly decides that no special form of verdict is necessary, and that it is only essential that a jury should pass upon such facts as are in issue between the parties. Facts admitted by the pleadings are not in issue and need no action of the jury. In other words, the action of the jury need only be invoked when there is something for them to pass upon.

The case at bar differs from that of Barto v. Himrod in the fact that there were issues raised in the answer and the reply. Still there was no evidence for the jury to pass upon except as to one of those issues. The question is thus presented, whether it is necessary for a jury to pass upon new matter, set up in the answer and controverted by the reply, as to which no evidence is given. The whole theory on which the common law of pleading rests is, that an issue must be framed on which evidence can be adduced by the parties respectively interested in sustaining it. Greenleat defined an issue “ as a proposition of fact to be tried by the jury upon the evidence adduced.” (1 Greenl. on Evidence, § 51.) In the early history of trial by jury, they might come to a conclusion without any evidence to sustain it. It was *85 at that time held that though no proofs were adduced on either side, yet the jury might bring in a verdict. (Plowden, 12; 1 Levinz, 87.) The oath of the jurors to find according to the evidence was construed to be to do it according to the best of their own knowledge. (Vaughan, 148, 149.) They might thus bring in a verdict from their personal knowledge without hearing extrinsic evidence, or receiving ■ directions from the judge. This doctrine having been wholly exploded, a jury can no longer find on an issue without evidence.

In applying those principles to the present case, it must be held that when a defendant admits the plaintiff’s case as made by the complaint, sets up new matter in the answer so as to raise several issues, and gives no evidence on more than one of those issues, there is nothing for the jury to try as to those issues on which he refrains from giving evidence, and accordingly no legal error in failing to give a verdict upon them. The case falls within the theory of Barto v. Himrod, as the court has the whole case before it, and needs no information from the jury as to any fact necessary to the disposition of the cause.

The former practice was fully as liberal as that which is maintained here. While it was a rule that the jury must find the facts, yet if in this or any other particular the verdict was defective, so that the court was not able to give judgment on it, it will amend not only by the plea roll but by the memory or notes of the judge or of counsel, and even by an affidavit of what was proved at the trial. It is only in the last resort that a new trial'is awarded. (1 Tidd’s Practice, 662, and cases cited; 2 id., 807.) The amendment might be made in certain cases in the appellate court as well as iu the court below. The one hundred and seventy-sixth section of the Code provides “ that the" court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party and no judgment shall be reversed or affected by reason of any such error or defect.” The error in the present case belongs to the *86 class here provided for and there should be no reversal of the judgment on a mere matter of form.

But it is said by the defendant that the jury under the Code has a discretion to find either a general or special verdict, and that discretion has been interfered with. The jury has had the same discretion from time immemorial. (3 Salkeld, 373). It can only be exercised as has been already shown as to the evidence bearing upon the issues. Ho complaint at - the trial was made that this discretion was interfered with. The exception to the course taken by the judge was general, and may fairly be imputable to the form in which .the find-^ ings were taken, rather than to an abridging of the jury’s discretion.

Some objections were made to the judge’s charge to the jury. One was that the plaintiff was entitled to recover unless the defendants had satisfied them by a preponderance of evidence that the conditions on which the policy was issued had been broken by the plaintiff.

The defendant had set up new matters in its answer. The plaintiff had denied it in his reply. The burden of proof on the pleadings rested with the defendant, and the case was tried on the theory that the affirmative was with it. The judge appears to have meant only that in his remark. The counsel should have called his attention to any defect in the formal statement, and should have asked him to charge according to any more accurate form of expression. It is suggested that the defendant could claim advantage of the rule which applies when the means of knowledge are peculiarly within the reach of the opposite party, and 'that it was only necessary for him to make out an apparent case, and then shift the burden of proof upon the plaintiff. It does not appear, however, that the means of knowledge were peculiarly within the reach of the plaintiff. He was insuring the life of a third person, his debtor, and there is no reason why he should be supposed to be more familiar with the state of that person’s health, or his habits, than the defendant. In fact the latter, apparently, had the greater- means of information from the *87 searching inquiries that it might make of Kewning and others, and from the examination made by its own physician. The final objection is, that the court refused to charge the jury that it made no difference, in the defendant’s defence, whether it knew Hewning’s habits or not at the time the contract was made.

There was no issue in the pleadings involving this question, but after the testimony had all been introduced the plaintiff’s counsel asked that the reply might be amended so as to allege that the company knew, when the policy was issued, what Newning’s habits were as to the use of intoxicating liquors. The judge reserved the question of amendment until the coming in of the verdict upon the questions submitted. While matters were in this condition the request to charge referred to was made and refused. There was no evidence, as the case then stood, that the fact was known to the defendant. The proposition, as it came before the judge’s mind, was an abstract question of law, having no foundation either in the evidence or in the issues. The judge rightly refused to charge as requested at that stage of the proceedings, and the whole subject subsequently became immaterial by the finding of the jury that Newning’s habits were correctly represented in the application for the policy.

On the whole, the judgment of the court below should be affirmed.

All concur.

Judgment affirmed.