
    Joseph Magnus, Appellant, v. Buffalo Railway Company, Respondent.
    
      Practice—a motion for a new trial upon the ground of newly-discovered evidence after the verdict has been set aside as excessive, condemned — a motion for a new tried on all the grounds specified in. section 999 of the Code of Civil Procedure may be directed to be heard on a case and exceptions at Special Term.
    
    Pending an appeal by the plaintiff from an order setting aside as excessive a verdict in liis favor, the defendant cannot, for the purpose of availing itself of the discovery that the principal witness for the plaintiff committed perjury on the trial of the action, and of thus avoiding any possibility of the Appellate Division restoring the verdict, either in whole or in part, procure an order vacating the order setting aside the verdict and permitting the defendant to make a motion for a new trial on a case and exceptions upon all the grounds specified in section 999 of the Code of Civil Procedure, and also, and at the same time, upon the ground of newly-discovered evidence.
    Whether the trial justice will hear a motion for a new trial made under section 999 of the Code of Civil Procedure upon the minutes at the term at which the case was tried is discretionary with him; he may properly direct the motion for a new trial to be heard at Special Term upon a case and exceptions.
    Appeal by the plaintiff, Joseph Magnus, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of October, 1897, as grants the defendant’s motion for leave to move at a Special Term for a new trial upon a case containing, exceptions, upon all the grounds enumerated in section 999 of the Code of Civil Procedure.
    
      Joseph W. Russell, for the appellant.
    
      Porter Norton, for the respondent.
   Per Curiam:

The situation in this case as revealed by the record is, to say the least, a somewhat remarkable one. It appears that upon the trial of the action, which was brought to recover damages for personal injuries, the plaintiff obtained a verdict for $14,550.

This verdict was subsequently set aside by the trial justice upon the ground that the recovery was excessive, and from the order vacating the verdict an appeal was taken to this court. In the meantime it was discovered that the plaintiff’s principal witness had committed perjury upon-the trial, and he was thereupon indicted, convicted and sentenced to prison for that crime.

At this period in the history of the case it naturally occurred to the defendant’s counsel that this last-mentioned fact furnished another and a very efficient reason "why a new trial should be granted in the action, and, fearing that this court might possibly • restore the verdict in whole or in part, he obtained an order at Special Term vacating the order theretofore granted setting aside the verdict and permitting the defendant to renew its motion upon the same grounds upon which it was originally made, and upon such further grounds as the facts might justify.

This order was in turn modified by the order from which the present appeal is taken, and which, as thus modified, directs (1) that .the order setting aside the order granting a new trial be vacated ; =(2) that the judgment entered upon the verdict be also vacated, and ‘(3) that the order of the trial justice granting a new trial upon the .-ground of excessive damages be set aside and the defendant be permitted to malte a motion for a new trial upon a ease and exceptions at Special Term upon all the grounds enumerated in section 999 of the Code of Givil Procedure, and also, and at the same time, upon the ground of newly-discovered evidence.

The moving papers upon which this last order was granted indicate quite clearly that the main object of this exceptional procedure was to bring on the motion for a new trial upon the ground of newly-discovered evidence at the same time as, and in connection with, the motion upon a case and exceptions for reasons which are equally obvious.

But the two motions are distinct and separate, and while they might ordinarily be heard at the same time, they would necessarily have to be decided independently of each other. The practice, therefore, to which the defendant’s counsel has resorted would not ■only fail of its object, but, if approved by this court, would lead to great confusion; and we must consequently discountenance it.

Having, however, reached this conclusion, we are met with this further embarrassment: The plaintiff has appealed from so much of the last order only as permits the defendant to make its motion for a new trial upon a case and exceptions at Special Term upon the grounds enumerated in section 999, his theory being that such a motion can be made only at the term at which the cause was tried.

We do not so understand the rule. The section referred to specifies upon what grounds a motion for a new trial may be made which is based upon the minutes of the court, and requires that when thus made it must be at the Trial Term and before the justice who tried the action. But, at the same time, it rests entirely within the discretion of the trial justice whether he will hear such a motion or will direct it to be made more formally and upon a case and exceptions. And when the latter course is taken we know of no reason why the motion should not be based upon any or all of the grounds enumerated in the section referred to.

It would seem to follow, therefore, that the order appealed from ought to be affirmed; but if this were done it would imply a recognition upon our part of the right of the defendant to move for a new trial upon the ground of newly-discovered evidence when the verdict in the case had already been set aside upon another ground; and this, as we have already indicated, cannot, in our opinion, be permitted. In view, therefore, of the peculiar circumstances surrounding the case, we deem it our duty to restore the parties to the precise position they occupied when the trial justice exercised his discretionary power by setting aside the verdict, and to thereby express our disapproval of the practice which has been resorted to. (Code Civ. Proc. § 1317 ; In re Rockwell, 31 N. Y. St. Repr. 22 ; Wood v. Baker, 60 Hun, 337; Griffin v. Helmbold, 72 N. Y. 437.)

The order appealed from and all orders granted since the order of the trial justice setting aside the verdict should be vacated, without costs to either party.

All concurred.

Order appealed from and all orders granted subsequent to .the order of the trial court setting aside the verdict vacated, without costs to either party.  