| NY | Sep 5, 1872
It appears by the recital in the order granting the new trial that the motion therefor was made, on the part of the defendant, on the judge's minutes, upon the ground that the verdict was against the instructions of the court. The only question therefore to be determined is, whether the order was proper. The Code, § 264, provides that "the judge who tries a cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages." The motion, on which the order in question was granted, was on neither of these grounds, and was wholly unauthorized by that provision. *246
It is unnecessary to inquire whether the judge could have set aside the verdict on the ground stated in the order, without an application by either party. That question does not arise on this appeal. The order as made was erroneous, and it was properly reversed by the General Term.
The order of reversal must, therefore, be affirmed with costs, and judgment absolute must be entered against the appellant, pursuant to his stipulation, on the verdict.
All concur in result; EARL, C., upon the ground that the jury having found the facts against defendant he could not complain that the verdict was not as large as under the instructions of the court it should have been.
Order affirmed and judgment accordingly.