| N.Y. Sup. Ct. | Jul 8, 1862
By the Court,
On the trial, the judge submitted to the jury the question, Did the plaintiff agree to extend the payment of the note in suit until the fall of 1861, as claimed in the answer ? and then instructed them to find a verdict for the plaintiff subject to the opinion of the court at general term. The jury found, in obedience to the instruction, a verdict for the plaintiff, answered the question put to them in the affirmative, -and assessed the damages of the plaintiff. The plaintiffs’ counsel moved the court to set aside the special verdict, and for a new trial on the "question of fact submitted to them, on the ground that the evidence was insufficient to authorize it.The. court denied the motion, and the plaintiff appealed.
The judge, at the circuit, has no power to grant a new trial unless where he has been authorized by the legislature to do so. There are but two cases in which the judge at circuit may grant a new trial. One is that at the same circuit in which a cause is tried he 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 in
By section 261 of the Code, the court is authorized to instruct a jury, if they find a general verdict, to find upon particular questions of fact to be stated in writing. It'was clearly within the power of the justice holding the circuit to direct a verdict subject to the opinion of the court at general term, and to instruct them to find upon a specific-question of fact. . Whether both instructions can be given in the same cause, I propose to examine hereafter.
There are two kinds of verdicts defined in the Code, viz., a general and a special verdict. The former is that iby which the jury pronounce generally on all or any of the issues, either in favor of the plaintiff or of the defendant. The latter is that by which the jury find the facts only, leaving the judgment to the court. (Code, § 260.) There cannot be a general and a special verdict upon the same issue, except so far as the jury may answer specific questions put them when they find a general verdict. Such an answer is not the verdict referred to in the Code, in sections 261 to 265. When, therefore, a party is permitted to move to" set. aside a verdict and for a new trial, a general or special verdict, as defined in section 260, is most obviously intended. If answers to specific questions are to be treated as verdicts, and the parties may move to set them aside and for new trials, it will follow that if the answer of one question is adverse to the plaintiff and another to the defendant, each may move for a new trial, and the party against whom the general verdict is rendered may move to set it aside, and thus we may have as many
The plaintiff in this case proposes to retain the general verdict which was rendered in his favor, .but fearing that the special finding might destroy the general verdict, he is laboring to get rid of that so as to leave the general verdict in full force. The defendant would doubtless consent that the general verdict be set aside, and the whole merits 5 ° again opened for investigation, but the plaintiff is not willing to open the door to so broad an investigation.
It seems to me that there is no mode by which a party in whose favor a general verdict is rendered, and against whom the jury have answered specific questions of fact submitted to them by thp judge, can proceed, except to vacate the verdict, if the other side will consent, and if not, then to move for a new trial upon the whole case.
If one party may move for a new trial on a specific question, so may the other. If a new trial is granted,, those questions only can be tried. The general verdict standing, the whole merits cannot be tried while that is in force; but if it is reversed, there will be another trial on the merits, and thus the case will be tried in detached parcels and upon all the issues, thereby affording an opportunity for all persons to gratify their taste for litigation to the fullest extent. " Section 262 of the Code provides that when a special finding of fact shall be incónsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. So that in this case, if upon the fact specifically found by the jury, the court should be of the opinion that there must be a judgment for the defendant, and if the court should not b'e able to review the question of fact, great injustice would be done him. But if the defendant should have consented to vacate the verdict and for a new trial, he would have
The practice pursued at the circuit, of ordering a verdict for the plaintiff, and at the same' time submitting to the jury a specific question of fact, is alleged to be erroneous, and that there was, by reason thereof, a mistrial of the cause. That question is not now here, and can only arise when a motion is made at the general term for a judgment on the verdict. But the question is, to some extent, involved in the one just discussed, and it is therefore proper that it should be examined.
This court has held, in at least two cases, that it was a mistrial for the judge at the circuit to direct a verdict subject to the opinion of the court at general term, when there were disputed questions of fact in the case. As there are two or three cases reported which seem to be adverse to the decision in this district, it is proper that we should reexamine the question, and conform our practice to that of other districts if we are mistaken in our views of it. ■
Section 265 of the Code provides that when, upon a trial, the case presents only .questions of law, the court may direct a verdict subject to the opinion of the court at general term. The general term in the 8th district have held, (16 How. Pr. 542,) that questions as to the admis
The power to order a verdict subject’ to the opinion of the general term, is where the case presents only questions of law. When must the court decide whether the case presents only legal questions ? Most clearly before the case is submitted to the jury.' The verdict in such case is the act of the court; no discretion is given to the jury; they must obey the instruction. The court cannot .wait to determine whether the instruction shall be given till the verdict is rendered, and then order the verdict thus found to be taken subject to the opinion of the general term. If such a course could be pursued, then in every case a verdict could be thus taken. The verdict which the court is authorized to direct is a general one for the plaintiff or for the defendant. If a special verdict is found, application for judgment upon it must be (§ 265) first made at the special term, unless exceptions, have been taken, and then the court may order the exceptions to be first heard at the general term. The judge at the circuit has no power to require the jury to answer specific questions, unless they also find a general verdict, voluntarily or by order of the court. If specific questions are put to the jury, it is because there is conflicting evidence upon the
It seems to me that this was not a case in which a verdict, subject to the opinion of the court at general term,
Mullin, Morgan and Bacon, Justices.]
Hew trial granted.'