
    Sylvester Brush, Plaintiff and Respondent, v. Hezekiah Kohn, Defendant and Appellant.
    1. A general verdict in favor of one party, rendered by the Jury, in obedience to the instructions of the Judge, cannot be corrected on motion, so as to transform it into a verdict for the other party.,
    2. Wherever the Court, on a supposed state of facts, instructs the Jury, if they so find the facts, to render a verdict for the plaintiff, when the instruction should have be’en to find, in that event, a verdict for the defendant, the remedy, if no exception is taken, is to move, on a case, for a new trial.
    3. This rule applies where the defendant tendered and paid into Court the amount due, and the Judge directed, and the Jury accordingly found a verdict for the plaintiff for that sum, instead of a verdict for defendant.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White, Monell and Barbour, J. J.)
    Heard, March 22, 1862;
    decided, March 29, 1862.
    Appeal from an order denying a motion to correct the verdict.
    
      The facts appear in the opinion of the Court. The motion at Special Term was made before Mr. Justice Moxell, and his decision, which was now appealed from, is reported in 14 Abbotts’ Pr., 51.
    
      Isaiah T. Williams, for defendant, appellant.
    I. The amendment would not prejudice the plaintiff.
    II. The amendment was refused on the ground that, because of the error of the Judge, the verdict could not be corrected.
    III. This was not an application to review the trial. The error of the Judge may not have led the Jury to find formally for the plaintiff.
    IV. The mistake, if it arose from the error of the Judge, is one which it is due to justice to correct instan ter, when pointed out.
    V. In The Bank of Columbia v. Southerland, (3 Cow., 336,) it was because there was a verdict subject to the opinion of the Court, that a case was held necessary.
    VI. The Judge did not expressly direct a verdict for the plaintiff, but a verdict for the sum paid into Court. The form of the verdict was not as directed by the Judge, but only the substance. »
    VII. Payment into Court, under a plea of tender before suit, was required by the practice in such cases, to perfect the answer of tender.. (2 Hill, 538; 14 Wend., 221; 8 Barb., 408.)
    VIII. Payment into Court is no acknowledgment of the right of action, beyond the amount paid in. (1 Tidd’s Pr., [2d Am. ed.,] 568;. 1 Term R., 629, 464; 3, Id., 657; 4 Id., 10, 579.)
    IX. There was no dispute as to the fact of tender and payment.
    X. On plea of tender before suit brought, and payment into Court, unless the plaintiff prove a sum beyond what is paid in, there should be a verdict for the defendant. (3 Cow., 336; 1 Burr. Pr., 408; 1 Wend., 191.)
    XI. After trial the verdict may be amended so as to conform to the facts, where there is no doubt as to such facts, either from the certificate of the Judge or otherwise, and of the real intentions of the Jury. (Burhans v. Tibbits, 7 How. Pr., 21; 3 Sumn., 410; Code, § 173; 8 Cow., 623; Hob., 54; 12 Wend., 135; 15 Johns., 318; 7 Cow., 29; 10 Mass. R., 64; 7 How. Pr., 21; 2 Burr., 698; 3 Term R., 659; 9 Cow., 151; 2 Johns. Cas., 17; 11 Pick., 125; 1 Dal., 134; 14 Johns., 86; Rockfeller v. Donnelly, 8 Cow., 652, 656; Sayre v. Jewett, 12 Wend., 135.)
    XH. Before or after judgment, the Court, in furtherance of justice, may amend any proceeding by correcting a mistake in any respect. (Code, § 173.)
    XIH. The whole matter of amendments is in the dis cretion of the Court. (3 Sumn., 410.)
    XIV. It is not in furtherance of justice to permit the plaintiff to recover costs of the defendant, where the matter litigated (viz., whether any rent was due after Jan. 1,1860) was found in defendant’s favor.
    XV. So much of the plaintiff’s claim as related to rent up to the 1st of January, 1860, by the tender and payment into Court, was out of the case; all the residue of the litigation was in reality disposed of in favor of the defendant.
    XVI. The remedy for a misfinding of the Jury is by motion. (1 Clinton’s Digest, 136, § 267.)
    XVH. If it appear, from the opinion of the Special Term, that the motion was denied for want of power to grant it, an appeal lies, though it be a matter resting in discretion. (12 Abbotts’ Pr., 16, 28; 20 N. Y. R., 81.)
    
      J. M. Van Cott, for plaintiff, respondent.
    I. Errors occurring at the trial can be reviewed and corrected only upon a case. (Bellows v. Shannon, 2 Hill, 86; Smith v. Smith, 4 Wend., 468; Schermerhorn v. Schermerhorn, 5 Wend., 513; Belden v. Davies, 2 Hall, 443; Bank of Columbia v. Southerland, 3 Cow., 336; Code of Proced., §§ 264, 265; Alston v. Jones, 17 Barb., 276; Storey v. Brennan, 15 N. Y. R., 524.)
    H. The instruction to the Jury to find a verdict for the plaintiff was right. There was no valid tender. The sum tendered was not enough. Plaintiff has recovered less rather than more than he is entitled to.
   By the Court—Bosworth, Ch. J.

This is an appeal by the defendant from an order denying a motion to change the verdict, which is a general verdict in favor of the plaintiff, for $166.67, into a verdict for the defendant..

The action was brought to recover $500, for the rent of premises leased by the plaintiff to the defendant. The defendant, before suit brought, tendered the sum of $166.67; plead the tender as a defense, and, accompanying Ms plea, paid into Oourt the sum tendered.

The plaintiff insisted that the lease continued for a longer period than the defendant conceded it did. The defendant proved that he made the tender as pleaded. The Judge, at the trial, instructed the Jury, “ that if they found that no more than the sum so tendered and paid into Court was due or owing for the said rent, that then their verdict would be for the said plaintiff for the said sum so tendered and paid into Oourt, to wit, $166.67.”

I state the instruction, in the words in which the moving affidavit alleges it was made. The Jury rendered a verdict for the plaintiff for that sum.

The plaintiff, on an affidavit stating these facts, and that the Jury did find that no more was due or owing for rent than the sum so tendered, moved, at Special Term, for an order changing their verdict for the plaintiff into a verdict for the defendant; that motion was denied, and from the order denying it this appeal is taken.

It is not pretended, whatever it may be alleged the Jury found, that the verdict, in form and words, is other than a general verdict in favor of the plaintiff, for $166.67.

Whatever error may have occurred at the trial, none can be imputed to the action of the Jury. They obeyed the* instructions of the Judge, and if there was any error, it was his, and not the Jury’s. The Jury having rendered a general verdict for the plaintiff and no different direction having been given by the Court, it was the duty of the Clerk to enter judgment in conformity with the verdict. (Code, § 264.)

There is no mode presented by the Code by which the defendant can be relieved from the error committed at the trial, except a motion at Special Term, upon a case, for a new trial. (Code, § 265; Rule 34 [15].)

Such was the practice before the Code. (The Bank of Columbia v. Southerland, 3 Cow., 336.)

It cannot justly be said, that the Jury rendered a verdict different in form from what they intended; they obeyed the instructions of the Court.

And this case is, in principle, precisely like every other, where the Court, on a supposed state of facts, instructs the Jury, if they find the facts to be as thus supposed, to render a verdict for the plaintiff, when the instruction should have been, to find, in that event, a verdict for the defendant.

That the error is more apparent in one case than in another, makes no difference in respect to the remedy to be pursued by the injured party. In all such instances, where no exception is taken, the remedy is a motion, on a case, for a new trial.

If the Jury had found specially, that the defendant tendered the whole sum due, judgment could be given in his favor notwithstanding a general verdict in favor of the plaintiff for the sum tendered. (Code, § 262, [217].)

Where a general verdict has been rendered for a plaintiff, upon a declaration containing several counts, some of which are bad, and the Judge certifies that all the evidence given at the trial is applicable to the good counts, he may be permitted to amend the verdict, as it is sometimes expressed, by applying it to the good counts. (1 Cai., 386; 12 Wend., 135.) This, in effect, is to permit the plaintiff to enter up his judgment on the good counts. (Stafford v. Green, 1 Johns., 505; Jones v. Kennedy, 11 Pick., 125.)

The verdict remains in favor of the party who recovered it, and for the sum rendered, and, by leave of the Court, the record is so made up as to show that it was rendered on the good counts only. ■

So, although a verdict may not conclude formally in the words of the issue, yet if the point in issue can be concluded Qut of the finding, the Court will work it into form, and make it serve according to the justice of the case. (Porter v. Rummery, 10 Mass. R., 69.) In other words, the Court will disregard the verbal imperfections and uphold the judgment. (8 Cow., 662, 663; Thompson v. Button, 14 J. R., 84.)

Even an alteration of its verbal phraseology, so as to make it express by words precisely that which the Court deems to be its legal effect, is quite a different- thing from transforming a general verdict in favor of a plaintiff into a general verdict in favor of the defendant.

Ho authority or precedent in support of the power of the Court to order the latter has been cited, and we are satisfied that no such power exists, on such a state of facts as this case presents. (U. S. Trust Co. v. Harris, 2 Bosw., 86; Bemus v. Beekman, 3 Wend., 667.) According to the papers before us, the Jury have not committed any error, nor made, inadvertently, a mistake; the error or mistake, if there be any, is that of the Court, and can only be redressed by a motion, on a case, for a new trial.

The order should be affirmed, with costs, but without prejudice to the right of the defendant to move, at Special Term, for leave to make a case and move thereon for a new trial.  