
    Emma L. Terwilliger, Resp’t, v. The Supreme Council of the Royal Arcanum, App’lt.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Appeal from order granting new trial—Brings up whole case.
    An appeal from an order granting a new trial brings up the whole merits of the case for review, and the court is not confined to the precise grounds upon which the decision below was based..
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered at the Kings county circuit. The order of the trial judge setting aside the verdict as against the evidence, and granting a new trial, was reversed by the general term, and thereafter the judgment herein appealed from was entered.
    
      Sidney Williams, for pl’tff; G B. Van Wart, of counsel; George V. Brower, for def’t; Thos. E. Pearsall, of counsel.
    
      
       See S. C., 14 N. Y. State Rep., 923.
    
   Pratt, J.

This is an appeal from a judgment in favor of the plaintiff for $4,201.09 damages and costs. The cause was tried at a Kings county circuit and a jury on February 2, 1887. Thereafter the justice set aside the verdict on the ground that it was against the weight of evidence, and granted a new trial. Plaintiff thereupon appealed, and this general term reversed the order granting a new trial, and judgment was accordingly entered upon the verdict.

This court has already decided (14 N. Y. State Rep., 923), that the verdict is not so manifestly against the weight of evidence that it ought not to stand. There was no such preponderance of evidence in favor of the defendant as to evince that the verdict was the result of mistake, passion or prejudice, even if the question was again open for review.

It is also true that on an appeal from an order granting a hew trial, the whole merits of the case are under review, and the court is not confined to the precise grounds upon which the decision below was based. People v. Supervisors of Essex, 70 N. Y., 228; Mackay v. Lewis, 73 id., 382; Krekeler v. Thaule, 73 id., 608.

As to the practice upon such appeals, see sections 190, 1336 and 1350 of Code of Civil Procedure and Raynor v. Raynor (94 N. Y., 248.

We do not deem it necessary to again review the evidence, as we have already held it was sufficient to warrant-a verdict for the plaintiff.

There are, however, two exceptions that require notice:

First. The defendant offered evidence, which was 4 excluded, of declarations made by the deceased prior to taking: out the policy inconsistent with the warranty contained in his application for insurance.

The conclusive answer to this exception is that such declarations, so far as they had reference to his acts, or any fact connected with his bodily condition, were permitted to be proved.

The exception, therefore, did not fall within the rule laid down in Swift v. Mass. Mutual Life Ins. Co. (63 N. Y., 186), and Edington v. The Mutual Life Ins. Co. of N. 7. (67 id., 185).

The evidence excluded related to declarations unattended by any act or fact, and was, therefore, inadmissible.

Second. It was not error to exclude the report of the police surgeon. Such paper was secondary evidence. It does not appear that the deceased had any knowledge of its contents, or was in any manner responsible for the paper, and the contents could better be proved by the doctor upon the witness stand.

But the report was shown a witness, Dr. Burdick, to refresh his recollection, and he then gave a detailed account of the condition of the deceased, so that all the information acquired by the police surgeons while sitting as a board of surgeons was admitted as evidence.

The testimony in regard to ruptures was immaterial, as it appeared that the surgeon who examined deceased for the defendant made a mistake in putting down the answers, and that such answers disclosed to him the fact that deceased had been troubled with ruptures.

The case was fully and fairly tried and submitted to the jury under an unexceptionable charge. It is true many exceptions were taken during the trial, hut all proper evidence seems at some time to have been admitted and given its just consideration by the court and jury.

Judgment affirmed with costs.

Barnard, P. J., and Dykman, J., concur.  