| N.Y. Sup. Ct. | Sep 2, 1861
I am clearly of the opinion that there must be, in this case, a trial of the issues de novo, irrespective, wholly, of any question considered by the county judge, or discussed by counsel in their points upon the argument. The trial had, in fact and in law, never been finished when the county judge, before whom the parties were proceeding, went out of office, and there was, consequently, nothing to review. Upon a trial of issues of fact there can be no review, on a motion for a new trial, until there has been somé
As long as there has been no determination, by which either party or court is concluded, so long there can be no review, for the simple reason that until the evidence is entirely closed, or while the matter is under advisement upon the evidence, the court; or tribunal before whom the suit is had, may of its own motion open the case for further evidence, and arrive at different conclusions from those which may have been informally announced, or announced in form, without being made matter of record. In short, while the matter tried is still before the judge, or referee, or jury, undecided, and no judgment can be entered for that reason, there can be no review, as on a motion for a new trial.
Here all the issues were on trial before the county judge. The case states that the proofs were closed, and after hearing counsel for the respective parties, the court rendered its decision “ as follows.” Then follows what is claimed to be a decision, which appears to have been a written statement of the judge, of certain findings of fact, and conclusions of law by him. This statement does not appear to have been signed by him, or filed, or delivered to the party in whose favor it was made, nor was any order entered upon it, as a decision of the matters in issue. It concludes with a statement that certain matters, supposed by the judge to be important, did not appear from the evidence before him, and an order that the parties produce witnesses on a certain day named, before him, touching those matters. Thereupon, as the case states, an order was entered for the production of such witnesses, before the court, by the parties, on the 11th of October, 1855. This is the only order which appears to have been entered after the commencement of the trial. The case then shows that on or about the 12th day of October, 1855, the defendant, upon due notice to the plaintiff, appeared and took the testimony of one witness, in regard to the matters specified in the order, and that the case was thereupon submitted to
While the judge had the case thus before him, under advisement, what was there to prevent his ordering further testimony to be produced not only upon the matters specified in the order, but upon any other question of fact in the case, or from coming to a different conclusion, as to the facts established by the evidence ? Nothing whatever. The decision, as it is called, as far as it had been announced, being neither signed by him, nor filed as his decision, was a mere memorandum of his own, which he was at perfect liberty to revise, and change, as his judgment upon further consideration might dictate.
The case, in this situation, before the judge, is quite analogous to that of A'yrault v. Sackett; (17 How. Pr. R. 461,) where the referee had announced his decision verbally, and written an opinion, which he had delivered to the attorney of one of the parties, but had not delivered his report to the successful party, or caused it to be filed. It was there held that the case was still before the referee, and he might at that stage open the cause for further evidence, and if he saw fit make a new or different report. That decision was affirmed at .general term.
It is urged by the defendant’s counsel that the case may be taken up by the present county judge, on the evidence before his predecessor, and on the footing of what is claimed to have been his decision, and determined, after hearing testimony on the subjects specified in the order. But I do not see how this can be done. I have endeavored to show that here was no decision by which even the predecessor was in any respect bound or concluded, upon any ground, other than mere tenacity of opinion. It rested in opinion merely, and ought not, surely, to be held to conclude any other judge, who may be called upon to decide the case, so that a judg
For do I see how the evidence taken orally before the former judge can be ordered to stand as evidence upon the new trial. Parties may doubtless stipulate that it shall be taken as the evidence, and it would then be regarded as proper evidence in the cause in any future proceeding. But the object of the statute in directing evidence to be taken by the examination -of witnesses in open court, was to enable the judge or jury, whose duty it became to determine the facts from the evidence, to judge of the credibility of witnesses, and determine the weight to be given to the testimony of each, in some measure from his appearance and manner upon the stand. If a new trial is to be ordered, as I think it must, I know of no power in the court to make any such order. It would be contrary to all rule and precedent in granting new trials.
For the foregoing reasons, I am of opinion that there must be a trial de novo in this 'case.
Smith, Johnson and Knox, Justices.]