18 How. Pr. 27 | New York Court of Common Pleas | 1859
An order ought to have been made at. the trial, directing that the exception taken to the decision of the court, granting the motion for a non-suit, should be heard in the first instance at the general term. The question was a new and an important one. It ivas very fully and elaborately argued upon both sides. The decision disposed of the whole
The remedy in a case of this kind, before the Coc^e, was by a motion, founded upon a case or bill of exceptions, to set aside the non-suit, which was, in effect, a motion for a new trial, which would follow as a matter of course, if the motion was granted. (Pratt agt. Hull, 13 Johns. 334 ; Packard agt. Hill, 7 Cow. 434; Wormouth agt. Cramer, 3 Wend. 394; Graham on New Trials, 280, 282, 1st edition; Graham's Practice, 2d edition, 312.)
It was embraced in the class then known as enumerated motions, which was heard in this court by all the judges sitting in banc, every Saturday, and in the supreme court the motion was heard in the first instance, before the circuit judge, unless he should direct that it be carried immediately before the supreme court. (Laws of 1832, p. 188 ; Laws of 1833, p. 395; Hicks agt. Chamberlain, 12 Wend. 254.)
If the party seeking the review Avished to prevent the entry of a judgment, he obtained an order staying proceedings until the motion was heard and disposed of, but the motion might be made, though judgment had been perfected and execution issued, and, if granted, the court Avould order restitution. (Laws of 1832, chap. 128, § 1, p. 188.) If the motion Avas de
The Code has made no material change as to the course of procedure, where the object, is to obtain a new trial. The application, by motion to the special term, in the first instance, except when the judge at the trial directs it to be heard in the first instance at the general term, is analogous to the former motion, before the circuit judge or before the judges of this court or of the superior court, and the appeal from the order granting or refusing the new trial is the establishment in the three courts of the practice, which, before the Code, prevailed only in the supreme court, while the appeal upon the law to tire general term from the j udgment is a substitute for the former writ of error. ■ “ There is no warrant in the Code,” as was said by my late colleague, Judge Woodruff, in Morgan agt. Bruce (1 Code, R. N. S. 364), “ for regarding a motion for a new trial as different, in any of its material incidents, from the like motion under the former system of practice.” The effect and operation of the Code, as to the manner of obtaining a review, were very fully examined by this court in the cases of Hastings agt. McKinley (3 Code Reporter, 10), and Morgan agt. Bruce, supra, and as a very lucid exposition was given by Judge Woodruff, in the first of these cases, of the system that prevailed before, with the view of pointing out the exact effect and nature of the enactments of the Code, it will be sufficient to refer to his opinion for an exposition of the views of this court. Since those decisions were rendered, the sections then reviewed have undergone no change, except by the amendment of the 348th section in 1852, providing that an appeal, upon the facts as well as upon the law, might be taken to the general term, where the trial is by the court or by referee.
The motion for a new trial was a comprehensive remedy, where, for misdirection or the improper admission or rejection of evidence, a bill of exceptions was tendered, or where a demurrer to evidence was put in, or a non-suit was granted, or a case made to set aside a verdict as contrary to evidence. The design of the motion in all such cases was, to enable a party to
The Code made provision, in 1848, for the manner of review in a new mode of trial—the trial before the court without a jury—by providing for an appeal from the judgment entered upon the direction of a single judge to the general term. In 1851, this mode of review was applied to judgments entered u.pon report of referees, and in 1852 the general term was authorized upon such appeal to review questions of fact as well as of law. Except in this class of cases, there is no very material or substantial change in the course of procedure. Things are called by different names, but the Code is, in this part of it, but little else than a codification, and a more general extension of the system that was previously in use.
The 348th section allows an appeal upon the law to be taken
It is urged that the decision of the court, in granting the non-suit, involves purely a question of law, and that the only remedy which the plaintiff has is an appeal from the judgment entered upon that decision to the general term. That the 348th section, in allowing an appeal from a judgment entered upon the direction of a single judge, provides for, and was designed to embrace such a case. The meaning, however, of this part of section 348 is very plain. Every judgment that is entered, except in cases where it is entered upon the report of referees, or upon confession without action, or upon the decision of general term, or where the clerk is authorized to enter it upon the failure to answer, is by the 278th section a judgment entered upon the direction of a single judge.
Upon every such judgment so entered, an appeal lies upon the law to the general term, which appeal, as before remarked, is a substitute for the former writ of error, which brought under review only questions of law. Judgment upon reports of referees are included in the same provisions, so that upon all
In tho language of the statute, it was from a judgment entered upon the direction of a single judge, or upon a report of referees “ in all cases,” thus giving the appellate tribunal (the general term) the same power of review in the case of judgment that was formerly obtained by means of a writ of error. This is entirely in consonance with the former system, and there is nothing, in any part of the section, indicating any intention on the part of the legislature to take away the right which previously existed, of moving for a new trial when a non-suit was granted, any more than any other case where a new trial might be moved for.
The provision in section 265, directing the manner in which the motion should be heard, and the provision that is made in section 349 for an appeal from the order .granting or refusing a new trial, both as respects the manner of hearing the motion, the mode of appeal, the giving of security, &c., is in every essential particular the same practice that was previously in use by the supreme court (General Rules, 9 Wendell, 449 ; Graham’s Practice, 2d edition, 640), and very plainly shows the design of the legislature. Changes have been created through the institution of special and general terms, particularly in this court and in the orphans’ court, and from the provisions in relation to trials by the court and referees, and the provision authorizing the judge in his discretion to hear a motion for a new trial upon his minutes, during the term or circuit at which the trial was had, but beyond this there is nothing affecting the motion for a new trial.
If the order denying a new trial will not accomplish the same purpose as if the proper order had been made on the trial, then I will hear the parties further upon an application to have the order made now which should have been made at the trial.