
    ROBERT G. GREGG, PLAINTIFF AND RESPONDENT, v. WILLIAM F. HOWE, et al., Defendants and Appellants.
    An exception to the decision of a motion for a new trial, made upon the judges’ minutes, is unavailable u¡3on an appeal from the judgment.
    The only mode of reviewing such a decision, is, by entering an order granting or denying the motion, as the case may be, and appealing from the order.
    Exceptions to be available on appeal from the judgment, must be to a decision made during the trial. A motion for a new trial is a proceeding after the trial is terminated.
    Held, therefore, that an exception to a decision denying a motion for a new trial upon the judges’ minutes, could not be examined on an appeal from the judgment.
    
      The decision of a motion to put off the trial of a cause is not conclusive, and may be reviewed.
    The mode of review is either by motion at special term, or by appeal from the judgment.
    A defendant, unsuccessful in his motion to postpone the trial, may either withdraw from the trial, and' allow an inquest, and after-wards move, at special term, to set the inquest aside; or, he may •except to the decision, and proceed with the trial; and afterwards, upon a case, containing the affidavits used on the motion and his exception to the decision, move for a new trial at special term; or present the exception for review by an appeal from the judgment.
    A defendant is not confined to his motion at special term. But the motion to postpone the trial being a part of the trial, an exception to the decision, if incorporated into the case, will present the question for review on an appeal from the judgment.
    
      Held, therefore, where a motion was made by a defendant to postpone the trial of an action, which was denied, and an exception taken and entered, the court at general term, upon an appeal from the judgment, can, in the first instance, examine the exception. And that under such circumstances a motion need not be first made at special term.
    Upon such examination the court can look only at the facts inserted in the case; and where only the moving affidavit was inserted, and it did not appear that there was any counter-affidavit or statement, •or anything of what transpired, except the moving affidavit and •exception, the court must determine the question upon the sufficiency of the defendant’s affidavit.
    
      Held, therefore, that, as in this case, the appeal papers contained only the moving affidavit, which fully complied with the requirements of such an affidavit for moving off the trial, and nothing appearing to raise a doubt or to cast suspicion upon the good faith of the application, the exception was well taken, and there should be a new trial.
    The importance of this decision, and the necessity under it, of having put upon the record all the facts whicn were before the court on the motion, strongly suggested in the opinion.
    Before Monede, Oh. J., and Freedman and Sedgwick, JJ.
    
      Decided June 1, 1874.
    Appeal from a judgment.
    
      The action was for goods sold and labor performed. One of the defenses was a breach of warranty of the quality of the goods, and that the labor performed was not done in a good and workmanlike manner.
    Upon the cause being called for trial, the defendants moved its postponement upon the following affidavit: After the usual affidavit of merits, that one William H. Peckham is a necessary and material witness for the defendants on the tnal of this action, as said defendants are advised by their said counsel, after stating to him fully and fairly what they expect to be able to prove by said witness, and verily believe it to be true ; that these defendants can not safely proceed to the trial of this action without the attendance of said witness on the trial thereof, or without his testimony on the trial of this action, as this deponent is advised by his said counsel, after the statement so made to him as aforesaid, and verily believes it to be true ; that the defendants have caused a subpoena to be issued for said witness, William H. Peckham, and the deponent has made diligent effort to serve the said subpoena on the said Peckham, and to procure his attendance on the trial of this action at this time, but that he has been unable to serve the same or to procure the attendance of the said witness on the trial of this action at this time ; that he has not been able to find the said Peck-ham within the State of New York; that said Peckham is now absent from the State of New York, and as deponent is informed and believes, said Peckham is now somewhere within the State of Kansas, and that he will not return to the State of New York until or about the first day of April next, at which time this deponent expects and verily believes he will be able to procure the attendance of said witness on the trial of this action.
    And deponent further says, “ that the defendants in said action will be able to prove by said William H. Peckham that he was a partner of the defendants at the
    
      .time of the agreement for the sale and delivery, and ¡also at the time of such delivery of the goods, wares ¡and merchandise, furniture and carpets, mentioned in ¡the complaint in this action, and that at said times the •plaintiff herein agreed to and with these defendants to do and perform certain work, labor and services in a good and workmanlike manner, and to sell, deliver and furnish to them certain goods, wares, merchandise, furniture and carpets of a superior make, workmanship and quality, but that the work, labor and services ■so done and performed by the plaintiff for these defendants was done in an unskillful and unworkmanlike manner, and that the goods, wares and merchandise, &g., sold and delivered, were of a different and inferior kind and quality, and not as represented and warranted.”
    1 ‘ That the application for postponement of the trial is made in good faith, and for the sole purpose of enabling the defendants to procure the attendance of said -witness, and not for the purpose of delay.”
    No affidavit in opposition was read.
    The court denied the motion, and the defendants ■excepted.
    The trial proceeded, and a verdict was directed for the plaintiff.
    Upon receiving the verdict, but before entry of judgment, the defendants moved for a new trial on the ■minutes of the court, on the grounds:
    I. That the court erred in denying the motion for postponement, on the ground of the absence of William F. Howe and Abe H. Hummel, in consequence of their being -engaged in another court, as attorneys, in the trial of a cause for felony, and that he, defendants’ attorney, was then actually engaged in the trial of a cause before "Thomas Boese, Esq., a referee, which motion was denied ■by the justice holding said court, and to which decision the defendants, by their attorney, did then and there-duly except.
    II. That the cowt erred in denying the motion to-postpone the trial ot said action, in consequence of the-absence of a necessary and material witness, William-H. Péckham, as set forth in the affidavit read on said motion.
    The motion for a new trial was denied, and the defendants excepted to the decision.
    Judgment having been entered upon the verdict,, the defendants appealed.
    No order was entered denying the motion for a new trial; nor was there any appeal from the decision.
    
      Mr. M. Laird, for appellants.
    
      Mr. E. A. Acker, for respondent.
   By the Court.—Mo well, Ch. J.

The exception-to the decision of the motion, for a new trial upon the-minutes of the court, is unavailable upon the appeal from the judgment. The only mode for reviewing such decision is by an appeal from the order,, and for the purpose of such appeal, an order must be entered, and a case or exceptions settled in the usual form-{Code. § 264, sub. 4).

An exception to be available on appeal from a judgment, must be to a decision made upon the trial of the action. A motion for a new trial, whether made before-the judge who tried the action, upon his minutes, or to-the special term, upon a case or exceptions, is a proceeding in the action after the trial. A motion made-upon the minutes is but a substitute for the motion at. special term. And, although a formal case or exceptions is not required, yet, after the decision, upon an appeal, a case or exceptions must be settled in the-usual form.

The grounds upon , which the motion can be made, are exceptions, insufficient evidence, or excessive damages. All of these occur or arise at the trial, and are brought up for review after the trial, upon a new proceeding, and upon an independent motion.

To obtain a review of questions of fact, in cases tried by a jury, a motion of this character is necessary. An appeal from the judgment presents questions of law only. A denial of a motion for a new trial, enables a party aggrieved by it, to present all the grounds, including insufficiency of evidence, and excessiveness of damages, to the appellate court for review. And in no other manner can these questions be examined. I am aware that motions for a new trial, made upon the minutes of the court, are required to be heard at the same term at which the trial is had ; and that it is most usually made immediately at, or upon, the rendition of the verdict. But in legal effect it is in fact made after the trial is ended.

Upon receiving the verdict, the clerk is directed to make a minute of it, and to enter judgment in conformity with it. The trial is terminated by the rendition and entry of the verdict; the entering of judgment being a mere clerical act.

We can not, therefore, examine the exception to the decision of the motion for a new trial.

But another decision was made to which there was an exception, and upon which two questions are presented.

First. Whether a decision overruling a motion for the postponement of the trial of an action is the subject of an exception:—and,

■ Second. Whether the decision in this case was correct.

The first of these questions was in part examined by this court, in Howard v. Freeman (7 Hoht. 25), where, after an elaborate review of the practice, it is stated, that a defendant, defeated in his motion for a postponement, may pursue one of two remedies. He may withdraw from the trial, and afterwards move on affidavits, at special term, to set the inquest aside ; or, he may appear and defend at the trial, and afterwards make a motion at special term upon a case for a new trial. The only exception to these modes is, where the trial is by the court without a jury, when the objection can be presented on an appeal from the judgment.

The case cited, however, does not, in terms, detertermine that upon a trial by jury, the objection can only be taken by motion at special term.

In that case the defendant withdrew from the trial, and an inquest was taken. He thereupon moved at special term to vacate the judgment. It was not necessary, therefore, to determine in that case, whether in trials by a jury, the motion was confined to the special term.

The difference in the manner of reviewing trials with and without a jury, is clearly defined. In the former, all motions for a new trial, properly speaking, must be made at the special term. Exceptions ordered to be heard at the general term in the first instance, may be sustained and a new trial ordered ; so an appeal from a judgment, presenting only questions of law, may lead to a reversal, and the granting of a new trial, but these are not called or denominated motions for a new trial. While in the latter case, i. e., trials without a jury, the motion for a new trial can, ordinarily, be made only by appeal from the judgment. In either mode of trial, for certain irregularities, for surprise, on the ground of newly discovered evidence, misconduct and the like, the motion must always be made in the first instance, at the special term ; and can in no case be heard upon an appeal from the judgment. An appeal from the order denying the motion may be taken, and may be heard in conjunction with the appeal from thé judgment. The practice under the former system invariably was to move at special term upon affidavits (Ogden v. Payne, 5 Cow. 15 ; Hooker v. Rogers, 6 Id. 577; 1 Burrill's Pr. 423). And I can not find any case since the code, in which the question is presented, that lias arisen otherwise than by motion (Howard v. Freeman, supra ; S. C., 6 Robt 511).

The denial of a motion to postpone the trial of an •action is not conclusive. It has always been the subject of review, formerly by motion, and under the present system, by motion or appeal.

The distinction which was taken in Howard v. Freeman (supra), as to the different modes of review in actions tried with and without a jury, appears to me to be unnecessarily drawn in that case, for there can be no reason for a different practice to attain the same end. Therefore, whether the trial is by a jury or without a jury, the mode of reviewing a decision of this nature should be the same. Hpon grounds requiring a special motion, the motion should be at special term,- whatever the form of trial. But where the decision can be examined, on an appeal from the judgment, it should be allowed alike, whether the trial was by jury or otherwise.

In Howard v. Freeman, it is admitted, that in actions tried by the court alone, the denial of such a motion, may be reviewed on an appeal from the judgment. This assumes that it is a matter or subject arising upon the trial, which presents a question of law. For if the subject arose before or after the trial, it could not get into the record of the trial, or form a part of the judgment roll. In that case, the motion would have to be made at the special term.

A motion to postpone is, ordinarily, made after the •action is called for trial, and the disposal of the motion is a proceeding in the trial; and as the decision is reviewable, it necessarily involves a question of law, and must, therefore, be the subject of an exception.

Although motions for a new trial, in actions tried by a jury, must, ordinarily, be made at a special term, yet, if upon such trials questions of law only are presented, an appeal from the' judgment will authorize a review of such questions, without first going to the special term (Qode, § 348).

In the case before us, the trial was by a jury. • The motion to postpone made at the opening of the trial was denied, and an exception to the decision taken. A case containing, the affidavit, upon which the motion was founded and the exception, was settled and annexed to the judgment roll, and is now before us on this appeal from the judgment.

The question is, therefore, it seems to me, properly before us. Had the motion been made at special term, an appeal could have been taken from its decision to the general term ; and I can see no reason for going first to the special term, when, if the case on appeal from the judgment, presents the exception, and the evidence on which the decision excepted to, was made, a review can be had with less labor and expense to the parties,” by allowing the review to be had on an appeal to the general term from the judgment.

There is nothing in the code to prohibit this practice, and there are good reasons for adopting it.

The affidavit upon which the motion to postpone was made is in the usual form. It contains an affidavit of merits, swears to the absence of a witness, the materiality of his testimony, due diligence to procure his attendance, and a belief in his probable attendance at the adjourned day.

These are all the essential elements of an affidavit usually required for such a motion (1 Phillipps Ev. 17, and vol. 3, p. 41, note 43). But the defendants in this case went further, and disclosed the evidence they expected to obtain from the witness, which evidence was material to their defense, and they also affirmed, that the application for the postponement was made in good faith and not for purposes of delay.

Mo counter affidavit was read, and there was nothing to impeach the veracity of the statements, or cast suspicion upon the application. Mothing of what transpired at the trial, if there was anything besides the defendants’ affidavit, is furnished by the printed case. The affidavit not having been contradicted, its statements must be considered, as true, and was sufficient to have required a postponement of the trial. In Hooker v. Rogers (ubi sup.), the court say, the usual affidavit is sufficient upon the first motion, unless circumstances of suspicion appear in some way, inducing a belief that the application is intended merely for delay.”

What circumstances there were in this case, if there were any, to impugn the good faith of the application, or to excite a suspicion or raise a doubt against the defendants, do not appear, as the case contains nothing more than the affidavit of the defendants, and no. other fact or statement whatever; and, therefore, looking, a,s we must, only at the affidavit, we are at a loss for a reason for denying the motion.

The judgment should be reversed, and a new trial ordered, with costs to the appellants, to abide the event.

The importance of the conclusion in this case will readily be seen. The practice -in resisting motions to postpone the trial of causes, has usually been loose and informal. Oral statements of facts are made, and accepted by the court and opposing counsel, and they are often deemed sufficient to defeat the motion; but they never afterwards get into the case. Hence, upon an exception and appeal, the court, as in this case, can only look at the papers furnished, and are not at liberty to conjecture or speculate, as to what may have otherwise transpired on the trial.

It is very possible that in the case before us, some statement was made, or some fact was known to the court, which cast suspicion upon the good faith of the application, and induced a denial of the motion. But nothing of the kind appears in the appeal papers.

It will be necessary, therefore, either to have the oral statements entered upon the record, or the facts put in the form of an affidavit, so that they or it can afterwards go into the case, otherwise they will be unavailable upon the appeal.

Freedman and Sedgwick, JJ., concurred.  