
    MARSHALL IBBOTSON, Plaintiff and Respondent, v. ALBERT KING (sued as Alfred King) impleaded, etc., Defendant and Appellant.
    I. NEW TRIAL.
    1. Motion fob, on the minutes, at what term to be made.
    
      (a) At the same term at which the cause is tried.
    
      Special Term orcler made within four days of the end of the term at which which the cause was tried, upon notice and after hearing counsel for both sides, granting leave to move for a new trial on the minutes; effect of.
    1. It does not authorize such motion after the expiration of the term at which the cause was tried.
    
    
      2. Motion bob on a case made.
    
      (a) When and for what causes not granted.
    
    1. When there is a conflict of evidence on the facts submitted to the jury, and no motion is made either to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action, or for a direction to the jury to find a verdict for defendant on the ground of insufficiency of the evidence to sustain a verdict against him, a motion for a new trial on a case made will not be granted, either on the ground that the verdict is without evidence, or on the ground that it is insufficiently supported by the verdict.
    1. What cannot be questioned under these circumstances. On such a motion the question whether the facts so 'submitted, even if found in plaintiff’s favor, will warrant in law a verdict for him, cannot be raised if there are no exceptions sufficient to bring it before the court.
    1. The principio of the decision in Rowe v. Stephens, 34 N. Y. Superior Ot. R. p. 436, applied to a motion on a case made.
    
    H. EVIDENCE.
    1. Res inter alios acta—what is not.
    
    
      (a) Sub-Agents. When the defendant relies for his defense upon the character of a transaction had between a third person and the employer of an employee of his agent, in relation to a matter entrusted by the agent to his immediate employee, ri report by the employee, who had the transaction with the third party, to his employer, (being the immediate employer of the agent), at the time of handing him the proceeds of such transaction, as to what the transaction was, is admissible in favor of the third party or one eluiminy under him, as tending to show the circumstances under which such proceeds were accepted.
    Before Sanford and Freedman, JJ.
    
      Decided March 5, 1877.
    
      The action was brought against the defendant as maker of a promissory note for $360, signed Martin & Co.
    The defendant denied that he was ever a partner of the firm of Martin & Co., and also pleaded usury.
    At the trial, which took place May 5, 1876, testimony was given on both sides, and plaintiff had a verdict, upon which judgment was entered.
    During the same term, to wit, on May 23, 1876, defendant moved, upon notice to plaintiff’s attorney, at a special term, held for the hearing of motions before a judge other than the one before whom the trial was had, for a new trial on the minutes.
    The court, at such special term for the hearing of motions, after hearing the defendant’s attorney in support of said motion, and plaintiff’s attorney in opposition, declined to entertain, and on May 23, 1876, made a special term order, which was entered on that day, whereby it was ordered “that defendant have leave to move before the justice before whom the cause was tried, for a new trial on the minutes of the trial; and in case such motion is denied, to make a case, with leave to turn the same into a bill of exceptions.”
    The term at which the cause was tried ended May 26. Thereafter defendant’s attorney, about September 28, 1876, served on plaintiff’s attorney a notice that on the above order, and the minutes of the trial of the cause, and an affidavit by defendant’s attorney setting forth “that when the jury went out to consult he left the court-room for a few moments, and upon his return he found to his surprise that the jury had, during his short absence, rendered a verdict in favor of the plaintiff, and had been discharged, and the plaintiff’s counsel had left the court-room, and consequently he had no opportunity to move for a new trial on the minutes,”—a motion would be made at the special term of this court, before his Honor Wi. E. Cubtis (the judge before whom the cause was tried), on October 3,1876, that a new trial be ordered on said minutes, or for such other or further order in the premises as might be just.
    When the motion, initiated by this notice, came on to be heard, plaintiff’s attorney read in opposition an affidavit, setting forth “that defendant appealed from the judgment to the general term on May 10,1876, and served his proposed case July 13, 1876, amendments to which were served July 24, 1876, which amendments were accepted by defendant’s failure to notice the same for settlement, as required by the rules of court; that defendant’s attorney noticed a motion for a new trial herein in May, 1876, but Judge Speib, who was holding special term, declined to hear the same, but gave defendant leave to make his motion before Judge Cubtis, who tried the cause ; that defendant neglected , to make such motion before Judge Cubtis at May term.”
    The motion for' a new trial on the minutes was denied, and an order to that effect entered ■ October 13, 1876, and an appeal was taken from such order to the general term on October 15, 1876.
    The cause came before the general term upon this appeal from the order denying the motion for a new trial on the minutes, and on the appeal from the judgment.
    For the purpose of the appeal from the judgment, a case was made and settled containing the following single exception:
    James E. Boyd was recalled on behalf of plaintiffs, and asked, “ When you brought this money—the $300, back to Beman, did you report any thing to him ?” He answered “ I did.” He was then asked, “What took place?” Defendant’s counsel objected, the objection was overruled, and an exception taken (fol. 88 of fclie case). The witness answered, “Muck, as I was told that Mr. Wilson had no more than §300, and that when the note was paid the balance would be handed over to Mr. Beman.”
    The preceding evidence had shown that Runyon W. Martin, acting as agent for the alleged firm of Martin & Co., had given the note in suit to one Beman to get discounted for the firm of Martin & Co. Beman entrusted the note to James R. Boyd, who took it to Mr. Wilson and obtained from him §300 thereon, and Boyd had previously testified that Wilson at the same time promised to hand over the balance when the note was paid.
    
      Wm. P. Lee, attorney, and of counsel for appellant, on the points decided by the court, urged:
    I. It has been intimated by the counsel for the plaintiff that he shall claim that the order denying the motion for a new trial on the minutes should be affirmed, for the reason that the motion was not made within the time required by the rules. 1. The cause was tried at the May term, 1876, and the motion was made in May.. The fact that it was not finally heard until October cannot prejudice the appellant. 2. At any rate, the objection as to the time of moving for a new trial should have been taken when the motion was heard, and as a preliminary objection. This was not done, and plaintiff cannot avail himself of it here..
    II. The question which was allowed by his, honor-the Chief Judge, was not properly allowed. The question was immaterial, as what took place between Beman and Boyd could not affect the rights of the defendant King, if he were not a partner in the firm of the makers of the note, as is claimed that he was not, nor yet could it affect the rights of the makers of the. note, whoever they might be. The question, therefore, should not have been admitted.
    
      Daniel G. Wild, attorney, and of counsel for respondent, on the points decided by the court, urged:
    I. The motion for a new trial on the judge’s minutes was properly denied. 1. The cause was tried in May, 1876, and a motion on the judge’s minutes could only be made at the same term (Code, § 264). 2. The motion was not made until October, 1876. The objection that the motion was not made within the time prescribed by law, was expressly raised by the affidavit of plaintiff’s attorney on the motion.
    II. The exception is untenable. Beman, the witness, was acting for B. W. Martin, the agent of the defendants, Martin & Co. Boyd had been employed by Beman to get the note discounted, and the testimony objected to is the report made by Boyd to Beman of the fact that he could get $300 on the note, and that when the note was paid, the balance could be paid over to Beman. The testimony was admissible as the acts and statements of the defendants’ agent; and it was also part of the transaction itself; the defendant having claimed that the discount was usurious, it was competent to show that it was arranged through their agent, Beman, that defendants were to receive the balance of the note over $300.
    
      
       Note by Reporters.—The question as to whether leave to move at a subsequent term or terms may not be granted under sections 174 and 405, does not appear to have arisen. It was not adverted to by counsel or by the court, either because it was assumed that the principle of the decisions, holding that the time to appeal could not be extended under section 174, applied to a motion for a new trial, or because the application at special term was not for leave to move at a subsequent term, and the order gave no such leave. The latter, from the views presented by the counsel in their points, and the fact that the order simply gave leave in general terms, the term at which the cause was tried not having closed, would seem to be the real cause why the question was not raised. It seems to the reporters, however, that neither the court nor any judge thereof can give leave for the making of such a motion at any term other than that at which the cause was tried.
    
   By the Court.—Freedman, J.

Section 264 of the Code provides that a motion for a new trial, if heard ' upon the minutes, can only be heard at the same term or circuit at which the trial is had. The motion, therefore, was made too late. It should have been made on h case.

But even if it had been regularly made, either in - time on the minutes, or subsequently on a case, it might well, and indeed within the principles laid down in Rowe v. Stevens (N. Y. Superior Ct. 436), it should have been denied. It stated no ground upon which it was made, and, as matter of fact, no motion had been made for a nonsuit or the direction of a verdict, nor had any exception been taken to the charge of the court, under which all the issues appear to have been fully and fairly submitted to the jury.

Under these circumstances I do not feel called upon to examine the entire testimony with the view of testing the correctness of the finding of the jury.

The question was properly allowed. As the defendant claimed that the note had been usuriously discounted, it was competent and material for plaintiff to show, by way of rebuttal, what the real arrangement was; and as the whole arrangement had been "made by an agent of defendant’s firm, plaintiff had a right to show under what circumstances the money was handed over to, and accepted by such agent.

The judgment and order appealed from should be severally affirmed with costs.

Sanford, J., concurred.  