
    THOMAS A. LEARNED, Appellant, v. WILLIAM E. TILLOTSON, Respondent.
    
      Special vei'dict—right of court to disregard same.
    
    The Code of Civil Procedure has not changed the rule that the office of a special verdict in equity is to inform, the conscience of the court, and that on the final hearing it may be disregarded.
    Before Freedman and Russell, JJ.
    
      Decided May 1, 1882.
    Appeal from judgment dismissing complaint after trial by the court without a jury.
    
      Stickney & Shepard, attorneys, and Albert Stickney, of counsel, for appellant,urged:
    Under the new Code, the court had not the power to disregard the verdict of the jury. There were no provisions of the old Code as to moving for anew trial upon the verdict of a jury on special issues in an equity case ; the practice was regulated by rules of court. The provisions of the new Code can only be interpreted to mean that when a motion for a new trial has been made and denied, and no appeal has been taken from the order denying a new trial, the verdict controls, and cannot be disregarded by the court. Especially is this so when the motion for a new trial is again made (as in the present case) at the trial before the court, and is again denied. The plaintiff, when the court had, on the trial at the equity term, denied the motion, had the right to assume that the verdict was to staqd. The governing section of the Code is section 1003. That section shows clearly the intention to be that the verdict is conclusive, unless it is set aside on motion for that purpose made on the minutes, or on a case. The last sentence of the section uses the words: “Where the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires.” Those words, taken in connection with the other section, mean, we submit, that the verdict is conclusive as to the issues it covers, unless regularly set aside.
    
      Root & Martin, attorneys, and Joseph H. Choate, of counsel, for respondent.
   By the Court.—Freedman, J.

This action was brought for an accounting. Although an issue had been fried by a jury and a verdict rendered in favor of the plaintiff, on the question of the existence of the alleged agreement, the plaintiff saw fit not to rely exclusively upon the verdict at the final hearing. He again called and examined witnesses, and no doubt made the best case he could, and, in addition, at the close of his case he offered the verdict and the evidence relating to all the proceedings upon the trial of the special issue. The court, at special term, upon the whole case, reached a conclusion at variance with the finding of the jury, and upon full consideration I think justly so. Nor can the power of the court in this respect be questioned. The Code of Civil Procedure has made no change in the long established rule that the office of a special verdict in an equity case is simply to inform the conscience of the court, and that the court on the final hearing is not precluded from rejecting it and finding the fact for itself. The merits have been so fully discussed in the course of the elaborate opinion delivered by the learned chief judge at special term, that nothing of importance remains to be added. All the exceptions being untenable, the judgment should be affirmed, with costs.

Russell, J., concurred.  