32 Barb. 568 | N.Y. Sup. Ct. | 1860
By the Court,
The defendant appeals directly from the judgment rendered at the circuit, upon a hill of exceptions annexed to and making a part of the record. It is claimed and objected that a trial by jury can only be reviewed upon á motion for a new trial made in the first instance at a special term, except when ordered to be heard in the first instance at the general term, tinder the provisions of section 265 of the code of procedure. It was said that a motion for a new trial upon the merits and upon the ground of newly found evidence had been made at special term and granted upon the latter ground and denied upon the other; and that the order granting the new trial, upon appeal by the plaintiff, had been reversed at the general term, leaving the order denying the motion for a new trial upon the merits in force, and the proper subject of consideration upon this appeal. It is a sufficient answer to this suggestion that the record before us does not disclose these proceedings. Upon the case it is an appeal directly from the judgment at the circuit, without any intervening proceedings, and if not authorized by statute must be dismissed. The understanding of the profession has been that an áppeal might be taken as has been done in this case, upon which exceptions taken at the trial could be brought before the court at general term, and the practice has been in accordance with this understanding; and in very few cases has a motion been made for a new trial before judgment. Indeed those cases in which the entry of judgment has been stayed to allow a review of the trial have constituted the exceptions to the ordinary practice, and that form of procedure has been resorted to when it has been sup
This is consistent with Watson v. Scriven, (7 How. 9,) and Taylor v. Harlow, (11 id. 285.) The justices pronouncing the opinions in these cases carefully distinguish between motions for new trials before judgment and appeals upon the law after judgment. (See per Harris, J. 7 How. 11.)
The only questions before us are upon the exceptions to the rulings of the judge on the trial. The question upon the sufficiency of the evidence to sustain the verdict is not brought up by the appeal.
The most material exception is to the refusal of the judge to nonsuit the plaintiff at the close of the evidence on his part. The negligence complained of as the cause of the in-
A still more palpable defect in the plaintiff’s case was in the want of evidence that the mare escaped onto the road through or over the fence. There was a farm crossing at, and a pair of bars leading into, the pasture lot, with a corresponding pair of bars opposite leading into the lot oh which the farm house stood. Ho marks or breaks were found upon the fence or ground indicating that the mare with another horse that escaped from the pasture at the same time had so escaped by getting over the fence. They were found some distance from the bars, and by their tracks could be traced back to within about a rod of the bars. And there their tracks were not discoverable in the green sward. In other words, they were traced to within a few feet of the bars, and to a point where if they had passed from the pasture lot through the bars they could not have been traced by reason of the character and condition of the turf or sward. The bars were slight, but not broken. The witness before referred to and by whom alone the plaintiff’s case is sought to be maim
Sutherland, Bonney and Allen, Justices.]
The judgment must he reversed and a new trial granted, costs to abide the event.