
    Thomas Simpson, Appellant, v. Louis Hefter, Respondent.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Motion for a new trial on the minutes — Will not lie after a trial of the whole issue by the court—Order denying such a motion unauthorized and unappealable — Remedy of the defeated party by appeal from the judgment — Special motion, on a case, where surprise or excusable neglect is established.
    After a trial of the whole issue by the court without a jury a motion for a new trial on the minutes will not lie.
    An order denying such a motion is unauthorized and presents no question' for review by the appellate court.
    The remedy of the defeated party is by appeal from the judgment under Code Civ. Pro., § 1346 — made applicable to appeals from final judgments of the City Court of the city of New York by Code Civ. Pro., § 3188.
    If the defeated party can establish surprise or excusable neglect, he can on either ground make a special motion at Special Term for a new trial upon affidavits and a case.
    Appeal by the plaintiff from an order of the City Court of the city of New York vacating a prior order denying the plaintiff’s motion for a new trial.
    Blandy, Mooney & Shipman (Charles Blandy, of counsel), for appellant.
    Blumenthal, Moss & Feiner (Benjamin F. Feiner, of counsel), for respondent.
   Freedman, P. J.

Hpon the close of the evidence, adduced upon the trial by both parties, the plaintiff moved for judgment for the amount of the note sued upon and the appeal-book shows that, then, after some discussion, the following took place: The Court: Without going any further into these decisions which your adversary cites, which are long subsequent to the passage of the Negotiable Instruments Law (and I think the facts are pretty well conceded here), I will discharge the jury from further consideration of the case, and will decide this upon any authorities you desire to submit, and then I will have a chance to give due consideration to the cases you have quoted. Plaintiff’s Attorney : That is very acceptable to me. Do you consider it important, in the determination of this question, to know whether Mr. Simpson had any notice whether this was an accommodation note? The Court: No> because Section 55 of the Negotiable Instruments Law says it is immaterial whether it was an accommodation note or not, so long as the person who purchased it paid value for it; and he testified that he paid $810' for it. Plaintiff’s Attorney: And we vest in Your Honor power to direct. The Cpurt: Put that on record. Defendant’s Attorney: This is done on the motion made by Mr. Blandy for a direction of a verdict, as I understand it; I don’t ask for a direction here. The Court: I understand that. Defendant’s Attorney don’t ask for .a direction ; I am simply answering the application for .a direction. Briefs and testimony to.be submitted by the 19th inst.”

The jury was thereupon discharged. -Subsequently the trial justice sustained the defendant’s contention and directed judgment for the defendant and, against the protest of plaintiff’s counsel, made findings of fact and conclusions of law, upon which judgment was entered in favor of the defendant. The plaintiff’s counsel then procured from the trial justice ex parte an order purporting to have been made at a Trial Term denying his motion for a new trial. The recitals of this order show that the grounds upon which it was applied for were, briefly stated, as follows:

1. " That the court erred in not confining its action to deciding .plaintiff’s motion for a direction;
2. That upon the denial of such motion the trial should have been resumed to enable the plaintiff to introduce further evidence;
3. That the court committed other errors in the course of the trial; and
4. That the judgment as directed is contrary to the evidence, contrary to the law and contrary to the practice.

A motion was thereupon made by the defendant, upon all the papers and proceedings in the action, to vacate the order denying the plaintiff’s motion for a new trial. This motion was granted and from the order entered thereon the present appeal was taken.

The awkward condition into which this case has been thrown is to be regretted. I fail to perceive how the trial could have been resumed before a jury which had been discharged with the plaintiff’s consent. Moreover the plaintiff’s counsel had made no motion or suggestion that, in the event of an adverse decision, he should have the privilege of introducing further evidence. On the other hand, it sufficiently appears that the submission of the case to the trial justice for decision was acquiesced in by the plaintiff’s counsel upon the statement of the justice that he considered it of no importance to know whether the note sued upon was an accommodation note or not, as long as it appeared, as it did, appear, that the plaintiff had purchased it for value, and that, in the end, the decision of the justice proceeded upon a theory at variance with the statement made at the time of the submission. But after all the order appealed from is right as far as it goes. It simply decides that, after a trial of the whole issue by the court without a jury, a motion for a new trial upon the minutes of the trial justice will not lie. That, in such a case, an order denying such a motion is unauthorized and presents no question for review by the appellate court has been expressly decided in Rosenquest v. Canary, 27 App. Div. 30. The remedy of the defeated party in such a case is by an appeal from the judgment under section 1346 of the Code of Civil Procedure. This section is made applicable to appeals from final judgments, rendered in the City Court of the city of New York, by section 3188 of the Code of Civil Procedure. The plaintiff in the case at bar must, therefore, be left to pursue the proper remedy. If, upon the appeal from the judgment, he can satisfy this court that reversible error was committed or that there was a mistrial, the proper relief will be granted to him. Moreover, if he can establish surprise or excusable neglect, he may make a special motion for a new trial, on either or both of such grounds, at the Special Term of the court below, upon affidavits and a case duly made and settled. Tyler v. Hoornbeck, 48 Barb. 197; Anderson v. Carter, 24 App. Div. 462; Shuttleworth v. Winter, 55 N. Y. 624; Born v. Schrenkeisen, 52 N. Y. Super. Ct. 219.

A motion of this character is addressed to the sound discretion of the court and, for the purpose of considering and determining it, the court possesses more ample power than a trial justice in a jury case on a motion for a new trial on his minutes.

The order appealed from must be affirmed, with costs and disbursements.

Leventritt and Greenbaum, JJ., concur.

Order affirmed, with costs and disbursements.  