
    Charles D. Robinson, as Receiver of the Mercantile Co-operative Bank, Respondent, v. Anton Lampel, Appellant. (Actions Nos. 1 and 2.)
    
      Amendment, introducing the defense of usury — it cannot be made on the trial — presumption, when costs are not imposed, that a new trial was granted on exceptions and not because the verdict was against evidence.
    
    The judge presiding at a jury trial has no power, upon such trial, to permit the defendant to amend his answer by introducing a, new defense, such as usury. Such an amendment can only be.allowed at Special Term.
    ■ Semble, that an order made by the judge presiding at a jury trial, setting aside the verdict and granting á new trial, must, where it is not made conditional upon the payment of costs by the moving party, be presumed to have been based upon exceptions taken during the trial, and not because the verdict was against the evidence or weight of evidence. ' -
    Appeal by the defendant, Anton Lampel, from an order of the Supreme Court, made at the Kings County Special Term and „ ■entered in the office of the clerk of the county of Kings on the 2d day of January, 1904, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for a new trial in ■each of the above-entitled actions.
    
      Henry C. Burnstine, for the appellant.
    
      H. Louis Jacobson and William E. Kisselburgh, Jr., for the respondent.
   Willard Bartlett, J.:

These two actions were tried together by consent, and resulted in a verdict for the defendant. Each was brought upon a promissory note, and the answer in each case consisted of denials and an averment of the application of collateral securities amounting to a payment of the note sued upon. - The case came to trial upon these issues, and after the jury had been impaneled the defendant moved to amend the answer by pleading usury. This motion was granted and the plaintiff excepted. At the conclusion of the evidence the case was left to the jury solely upon the question of usury, and they found a verdict for the defendant. A motion was made for a new trial upon the minutes upon all the grounds stated in section 999 of the Code of Oivil Procedure; decision upon this motion was reserved, and the order was subsequently made from which the present appeal is taken, setting aside the verdict and granting a new trial.

This order is criticised because it does not state the specific ground upon which' it is based. It is apparent, however, that it must have been granted upon some exception taken during the trial, because it is not made conditional upon the payment of costs, as would be the case if the sole ground had been that the verdict was agáinst the evidence or weight of evidence.

We think the order must be sustained on account of the error committed in permitting the defendant to amend the answer by introducing a new defense upon the trial. This could only properly have been allowed at Special Term. The action of a referee in allowing an answer to be amended upon a trial where the allegations of the amendment constituted a new defense to the action has been held to be error requiring the reversal of the judgment entered upon his report. (Drake v. Siebold, 81 Hun, 178.) The same rule applies to the allowance of a like amendment by the judge presiding over a jury trial. An^exception which would compel us to reverse a judgment entered upon'the verdict in favor of this defendant certainly justified the trial judge in setting aside that verdict. It is contended in the brief for the appellant that no exception was taken by the plaintiff to the amendment of the answer setting up usury but we do not so understand the record.. After the counsel for the defendant stated that he desired to move to amend the answer by adding a new defense, that of usury, the court required him to state his proposed amendments on the record. This was done at considerable length. The appeal book then: stated that the motion was. granted and an exception taken. This clearly means that the plaintiff duly excepted to the action of the court in allowing the amendment.

The order appealed from should be affirmed.

All concurred.

Order setting aside verdict and granting new trial affirmed, with costs.  