
    AARON HERZBERG AND ANOTHER, Plaintiffs and Respondents, v. HENRY MURRAY, DEFENDANT AND APPELLANT.
    VERDICT oe a jury.
    Amendment oe, Effect of irregularity of same, when not AMENDED.
    In the case at bar, the action was to recover from defendant, upon an agreement to pay to the plaintiffs one half of all losses sustained by them in consequence of the bad debts arising from any and all sales made by or through one Bannon, a salesman; and a schedule or list of the debts claimed by them to be bad, were attached to the complaint. The jury found a sealed written verdict for plaintiffs for eight hundred and thirty-seven dollars and added, the judgment and debts mentioned in the schedule, vis., sixteen hundred and seventy-four dollars, to be assigned to the defendant for his benefit.
    
    held
    That such a verdict was void. It was not such a verdict as could properly have been found under the issues submitted to the jury. They could only find for the plaintiffs, assessing the damages, or generally for the defendant.
    The award of the bad debts, which formed the subject matter of the action, was not within the province of the jury.
    The jury should have been required to correct it. The court could not do it for them.
    Upon the reception of a sealed verdict which is imperfect in substance or form, the court may cause the jury to retire and correct it. After it is received and recorded it can not be altered.
    If the alteration, however, is merely as to the form of the verdict, and not affecting its substance, it would not be cause for setting it aside (Sayre v. Jewett, 12 Wend. 135; Burhans v. Tibbitts, 7 How. Pr. B. 21.)
    In the case at bar, the court held that this verdict could not be amended or altered by the court, by striking out the portion relating to the assignment of the bad debts, as thereby it would no longer be the verdict returned. Such an amendment was one affecting its substance, and could not be made by the court.
    Before Mokell, Cli. J., and Curtis, J.
    
      Decided Jan. 3, 1876.
    Appeal from an order denying a motion to vacate the judgment and to grant a new trial.
    The action was against the defendant as surety upon an agreement between the plaintiffs and one Bannon, wherein the plaintiffs agreed to employ said Ban-non as salesman, and the defendant agreed that he would pay to the plaintiffs all losses by them sustained in consequence of the non-payment to them of all moneys collected by said Bannon ; and also one half of any and all losses sustained by the plaintiffs in consequence of the bad debts arising from any and all sales made by or through said Bannon.
    The complaint alleged the collection of money by Bannon, which he failed to pay to the plaintiffs; and also losses sustained by them in bad debts arising from sales made by Bannon.
    Annexed and referred to in the complaint was a schedule of the bad debts claimed as losses by the plaintiffs, upon sales made by Bannon, consisting of thirty-two debts, aggregating and amounting to one thousand six hundred and seventy-three dollars and three cents.
    At the trial, the court left it for the jury to determine what amount Bannon had collected, and failed to pay over, and also the amount of bad debts he had made upon sales of the plaintiffs’ property. And instructed the jury that for the amount of moneys collected and not paid over, and the one half of the bad debts the plaintiffs were entitled to recover.
    The jury were directed to sign and seal their verdict, and deliver it to the court on the day succeeding the trial.
    The following is the written verdict of the jury, handed to the court, and signed by all the jurors, they having separated after the agreement: “ The jury
    say that they find a verdict for plaintiffs for eight hundred and thirty-seven dollars; the judgment and debts mentioned in the schedule, viz., sixteen hundred and seventy four dollars, to be assigned to the defendant for his benefit.”
    The amount found for the plaintiffs is just one-half of the bad debts mentioned in the schedule annexed to the complaint.
    Upon the rendition of the verdict, the defendant moved to set aside the verdict, for irregularity. At the same time the plaintiffs moved to amend the verdict. The court held the motions under advisement, and finally denied the motion to set aside the verdict, and granted the motion to amend, and accordingly directed the clerk to amend the verdict by striking out the words “the judgment and debts mentioned in the schedule, viz., sixteen hundred and seventy four dollars, to be assigned to the defendant for his benefit.”
    Judgment for the amount found for the plaintiffs, and the taxed costs, was afterwards entered.
    The defendant moved at Special Term to be relieved from the judgment, and to vacate and set it aside, and for a new trial. The motion was founded upon a case made and settled containing the foregoing facts, and also upon affidavits of all the jurors, that after they retired there was a great difference of opinion among them in respect to the case, and that they would not have agreed, if the condition that the alleged bad debts should be assigned to the defendant, as stated in the verdict, had not been a part thereof.
    The defendant’s motion was denied, and he appealed from the order.
    
      N. J. Waterbury for appellant.
    
      Mr. Yeaman for respondent.
   By the Court.—Monell, Ch. J.

The objection of the respondent’s counsel, that the questions involved in the case are not before the court in a form entitling them to be considered, is not free from difficulty.

A motion for a new trial was made upon, as it is alleged, the judge’s minutes. That is one of the prescribed forms for obtaining a review of the trial. It can be made upon exceptions, or for insufficient evidence, or for excessive damages. An appeal from an order denying the motion puts the general term in possession of the case.

We have lately held (Gregg v. Howe, 37 Sup'r. Ct. 420; McMicken v. Lawrence, 39 Id. 540), that an exception to a denial of a motion for a new trial is unavailable in the general term.

The motion for a new trial upon the minutes of the court, is in lieu of a motion at the special term, and an appeal from the order may be taken directly to the general term.

A party can not do both. If he moves upon the judge’s minutes, he can not afterwards move at the special term upon a case.

If, therefore, it had appeared in this case that the motion at the trial was made upon the judges minutes, we should be compelled, I think, to dismiss the appeal, on the ground, that the motion at special term, could not afterwards properly be made.

But I do not find in the case any statement that the motion at the trial was made upon the judge’s minutes. The order entered upon the motion recites it as “ defendant’s motion to set aside the verdict as irregular, and-the plaintiff’s motion to amend the verdict” being heard, &c., and it does not state upon what the motions were founded; probably it was u.pon the verdict in the form in which it was rendered.

When the motion was made at special term, then it appeared for the first time, and only in the affidavits used'on that motion, that the defendant’s application at the trial was made upon the judge’s minutes.

But as the mode of presenting the question to the general termis defective, at most, only in form, I think, in view of the importance of those questions, any such defect should be overlooked.

The verdict as rendered by the jury was not such a verdict as could properly have been found under the issues submitted to the jury. They could only find for the plaintiff assessing the damages, or generally for the defendant. The award of the bad debts, which formed the subject of the action to the defendant, was . not within the province of the jury.

Upon receiving a sealed verdict which is imperfect in form or substance, the court may cause the jury to retire and correct it. But, it seems, if the verdict is received and recorded, it can not be afterwards altered (3 Gra. on new trial, 1405). If the alteration is merely of the form of the verdict, not affecting its substance, it would not be cause for setting the verdict aside (Sayre v. Jewett, 12 Wend. 135 ; Burhans v. Tibbits, 7 How. Pr. R. 31).

In the case before us the verdict was received and recorded. It was afterwards amended by striking out a part of it. If that could be done, it must be on the ground that the part stricken out was wholly immaterial, and did not affect the verdict as a whole.

But the jury seem to have attempted to make an equitable disposition of the case. They appear to have thought that as the defendant was to be held liable for the bad debts, he was entitled to have them assigned to him for what they were worth. There was not, however, any such relief demanded by the defendant, and the award of the debts to him was unauthorized, and, in my judgment, rendered the whole verdict void.

Under these circumstances, it was the duty of the court to have refused, to receive the verdict, and sent the jury back with instructions to find an unconditional verdict.

The verdict as rendered was not such a verdict as the court could, under the pleadings and issues, render a judgment upon; and hence, when it was altered to conform to such issues, it no longer was the verdict which the jury had returned.

And it was too late, after it had been recorded, to make the alteration, as has already been said. And see Warner v. New York Central R. R. Co., 52 N. Y. 437.

I have not regarded the affidavits of the jurors, read upon the motion below. Such affidavits can not, as a general rule, be received to affect their verdict, and are not necessary in this case. It is enough, however, that the verdict they returned was void. They should have been required to correct it, the court could not do it for them.

The order should be reversed, the judgment should be set aside, and a new trial granted, with costs to the appellant to abide the event.

Curtis, J., concurred.  