
    Franklin B. Lord, as Executor, Respondent, v. John Van Gelder, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Order — Amendment of. -
    An order denying a motion for a ,new trial cannot be amended by inserting therein affidavits as to occurrences which took place when the.-jury was polled, which were not 'used upon the motion. ' 1
    Appeal from an affirmance by the General Term of the Oity Court of an order made at Trial Term, denying defendant’s motion to amend the. order denying his motion for a new trial on the judge’s minutes, by inserting therein reference to affidavits containing statements as to what occurred when the jury was polled, after rendering their verdict for the plaintiff.
    Rufus P. Livermore, for motion.
    , George Lord Day, opposed.
   Daly, P. J.

The defendant’s affidavits alleged that the seventh juror, when asked if the verdict was his, asked certain questions and then declared he was for the defendant. The plaintiffs affidavits alleged that the juror answered in the affirmative when asked if the verdict in plaintiffs favor was his, and afterward asked if a certain five per cent, included in the verdict was for the defendant; that other jurors unanimously stated that the whole matter had been explained to him in the jury-room, and that it was all understood; that the juror’s objection seemed to be ex- , plained away to his satisfaction and he appeared to assent to the verdict. The assent of the juror to the verdict seemed to have been understood by the trial justice, for he denied the motion for a new trial; but, however that may be, the motion to, recite these affidavits in the order denying that motion was properly refused. The affidavits were not used upon the motion, and, therefore, could not be recited nor referred to in the order denying it. The motion was made immediately after the verdict, on the 14th of March, 1895, and the order denying it was entered the-same day. The affidavits which defendant asked to have recited in it Were not made until the 22d, 28th and 30th of March, and the 1st of April, 1895, respectively.

If defendant desired to raise a question for the General Term upon the occurrences at the time the jury were polled, the proper practice would have been to have a statement of the facts settled and inserted in his case on appeal from the order denying his motion for a new trial. Weeks v. Hart, 24 Hun, 181.

Order appealed from affirmed, with costs and disbursements.

McAdam and Bischoff, JJ., .concur.

Order affirmed, with costs and disbursements.  