
    MARTIN v. PLATT.
    
      N. Y. Supreme Court, First Department, Special Term;
    
    
      February, 1891.
    1. Motion for new trial.] A motion for new trial on the ground that the verdict was against the weight of evidence need not necessarily be made before the expiration of the time to appeal from the judgment. Such a motion can only apply to a question submitted to and determined by the jury.
    
      a. The same ; verdict against evidence.] ' A question of fact, which by acquiescence of both parties at the trial, was submitted to the judge, and decided by him, his decision being excepted to, and the exception having been heard at general term and overruled, cannot be presented again as a ground for setting the verdict aside as against the weight of evidence.
    Motion for a new trial on a case.
    Howard A. Martin brought this action against Spencer C. Platt and others, executors of William H. Platt, to recover compensation for his services as accountant in an action brought by the executors, which plaintiff alleged were reasonably worth $7,000, which sum he also alleged the executors had in writing adjusted as the amount due him, consenting that it be paid out of the first proceeds of the judgment they had recovered in the action.
    The defense to this claim was that the executors had never personally employed plaintiff nor authorized their attorney to employ him as alleged, nor knew that he had rendered such services and that the written adjustment of his claim had been made merely to enable him to borrow money on it, and that he had told them subsequently he had not succeeded in borrowing it and that the paper had been destroyed.
    
      At the close of plaintiff’s case, defendant’s counsel moved to dismiss the action on the ground, first, that viewed as an action on a quantum meruit it was not ■commenced within six years after the close of the service. This being denied, the motion was renewed on the ground that considered as an action on the written ■audit or adjustment it should be a suit in equity to reach the fund ; also that before recovery could be had against the defendants personally, plaintiff must show that the fund out of which he was to be paid had been otherwise absorbed, and also on the ground that ■defendants could not be held liable personally. The motion having been denied and an exception taken, and defendant’s case having been gone through with, defendant’s counsel moved finally that the judge direct a verdict for the defendant and although referring to the grounds previously taken, the motion for a verdict assumed that the only question of fact that could go to them in any aspect was whether the instrument in question was really intended to be binding.
    The court said that the better way for all parties would be to deny the motion and to submit the question ■of fact that is raised by the execution of this instrument to the jury. The charge to the jury was on this question, the judge in closing, saying : “ A variety of questions of law have been raised in this case, but with those, of course, the jury need not trouble themselves. . . . The sole thing for the jury to do is to pass upon the single question of fact which is raised in this case,” thereupon submitting the question whether the instrument was executed as a binding agreement.
    The jury found for plaintiff in full amount of the claim, and the court with concurrence of counsel ordered the exceptions to be heard in the first instance at general term ; otherwise no exceptions to the charge were taken. After judgment on the death of the plaintiff, his administratrix was substituted.
    
      The General Term overruled the exceptions and ordered judgment upon the verdict, which judgment was entered.
    The defendant subsequently procured the case to be settled before the trial justice, and moved for a new trial upon the case as made.
    
      Edward C. Clinch and George C. Coffin, for plaintiff..
    
      William J. Wilson, for defendants.
   Ingraham, J.

This action was tried at Circuit before Mr. Justice Andrews and a jury. One question of fact was submitted to the jury, and that question was decided adversely to the defendants. After the verdict of the jury was rendered, the exceptions taken by the defendants were ordered to be heard in the first instance at the General Term, and judgment on the verdict was in the meantime suspended. The bill of exceptions was duly settled, and the exceptions brought on for argument. The General Term subsequently overruled the exceptions and ordered judgment upon the verdict, which judgment was duly entered on April 22, 1889. The defendants subsequently made a motion for a new trial upon the ground of newly discovered evidence, which motion was denied. The defendants then procured a case to be settled by the Justice who tried the case, and on May 14, 1890, noticed this motion for a new trial upon the case as made.

Under section 1002 of the Code, it is provided where the motion is “ founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial ” a motion for a new trial cannot be made “ unless notice thereof be given before the expiration of the time within which an appeal can be taken from the judgment.”

The exceptions taken by the defendants upon the' trial having been disposed of by the general term, this motion, having been made after the time to appeal from the judgment had expired, cannot, under the section above cited, raise any question as to the ruling upon the law or an error in a finding of fact made by the judge upon the trial.

The only ground upon which this motion can now be made is that the verdict of the jury was against the weight of evidence. Such a motion appears to be recognized by section 1006 of the Code, and I know of no provision that requires it to be made at any particular -time. Such a motion, however, must apply only to the question submitted to the jury and determined by it..

At the close of the case, the defendants moved for a direction of a verdict in their favor on the ground that the claim was barred by the statute of limitations; That motion was denied by the trial judge and to that denial the defendants excepted ; that exception was one of the questions presented to the general term and overruled by it.

The only question submitted to the jury was whether the agreement upon which the action was based was really intended to be binding in favor of the plaintiffs and against the defendants, and the court instructed the jury that if they believe that the plaintiff was employed by William R. Martin and rendered services as an accountant, in the case of Platt v. Platt, during the years 1873 to 1877, and that in 1879 the executors executed the paper which has been put in evidence, as an adjustment of the plaintiff’s claim, and as a valid and binding agreement between themselves and plaintiff, they should render a verdict for the plaintiff for the amount of $7,000, with interest, but that if they believed, on the other hand, that the paper was executed upon the agreement that it should be used to borrow money on, and that if money was not obtained upon it that it should be destroyed, and that it was to be for no other purpose, then they should render a verdict for the defendant, and that question of fact the jury found against the defendant by their general verdict in favor of the plaintiff. It is not contended on this motion that as to that question of fact the verdict was against the weight of evidence so that the court would be justified in granting this motion.

The defendants claim, however, that the court should have dismissed the complaint on the ground that the statute of limitations had run against the claim; that there was no evidence that would justify a finding by the jury that the statute had run; but no such question was submitted to the jury. As to whether or not the statute had run was a question which, by acquiescence of both parties, was submitted to the court, and upon that question the court decided in favor of the plaintiff, and to that decision the defendants excepted, and that question as to whether or not the court correctly ruled in deciding that motion was one of the exceptions that were presented to the general term and overruled. .That question cannot, therefore, be presented on the application to set aside the verdict of the jury as against the weight of evidence when no question of fact upon which the ruling of the court as to the Statute of Limitations was made was presented to the jury.

Motion for new trial must, therefore, be denied, with costs.  