
    WILLIAM H. GARNER, Appellant, v. DARIUS R. MANGAM, et al, Respondents.
    
      ‘Order for hearing of exceptions at general term—when may be made.— Motion to vacate order—irregularity must be specified.
    
    .It is not irregularity for the trial judge at the same time that he denies defendant’s motion for a new trial on the minutes, to order the exceptions to be heard in the first instance at general term, there being but one motion, viz.: for a new trial.
    
      .It seems, that a motion that the exceptions be heard in the first instance at general term, may be made after the denial of a prior motion for a new trial on the minutes upon exceptions.
    "Upon a motion to set aside an order for irregularity, the order to show cause must, under rule 37, specify the irregularity, even if it appear in the affidavit.
    Before Speir and Russell, JJ.
    
      Decided November 22, 1880.
    Appeal from an order made by Judge Sedgwick, denying a motion to vacate and set aside an order made by the late Chief Judge Curtis, directing that exceptions be heard in the first instance at the general term, and judgment on the verdict meantime' stayed.
    The action was tried before the late chief judge and. a jury in February, 1880. The verdict was for the plaintiff. Thereupon a motion was made on behalf of the defendants, to set aside the verdict, and for a new trial upon the minutes. The hearing of this motion was set down for-a later day. On the argument of the motion it would seem that the chief judge expressed Ms unwillingness to grant a new trial upon theminut.es, but concluded that there was enough doubt in the case to justify an order that the exceptions be heard in the first instance at the general term. Although two orders were entered—one denying the motion for the ñew trial upon the minutes, and another directing the exceptions
    
      to be heard in the first instance at the general term— they were both the result of one motion, heard at one time; both bear the same date and were entered at the same time. The point presented by the appellant is, that when the judge had decided and denied the motion to grant a new trial upon the minutes, his powers, under sections 999 and 1,000 of the Code, were exhausted, and he had no authority of law then to make the order which is the subject of this appeal.
    
      James S. Greves, attorney, and Alexander Thain, of counsel, for appellant, among other things, urged :
    —I. In actions tried before the court and a jury there are but three ways of moving for a new trial: 1. Before the trial judge, upon his minutes ; or, 2. At special term, upon a case, or case and exceptions ; or, 3. At general term, upon exceptions, or case and exceptions; and these motions, so fa.r as the exceptions taken at the trial are concerned, are precisely the same, the choice being only of the forum in which the motion shall be made (Code Civ. Pro. §§999, 1,000; 3 Wait Pr. 420, 421, 423, 434; Morange v. Morris, 12 Abb. Pr. 164, where the practice in such cases is stated at length).
    II. In the nature and design of these three remedies it clearly appears that they are alternative, not cumulative (Graham Pr. 638 ; Laws 1833, c. 271, § 4).
    The first remedy was not known to the common law (3 Wait Pr. 421; Wilcox v. Hoch, 62 Barb. 509). It was created by statute, and by no correct construction of the statute had the learned justice the power, after he had heard and denied the motion for a new trial upon the exceptions, and entered an order thereon,-to' then direct the same exceptions to be heard, in the first instance, at the general term. As to the meaning of the phrase, “in the first instance,” see Watson v. Scriven (7 How. Pr. 9); Taylor v. Harlow (11 How. Pr. 288); Morange v. Morris (12 Abb. Pr. 167); Grah. Pr. 
      637, 638; Laws 1833, c. 271, § 4. Clearly, from the above authorities, the exceptions taken at the trial cannot be heard and determined in the first instance before the trial judge, and also, in the first instance, at general term. This has been distinctly held by the supreme court, general term, third department, Board-man and Bookes, JJ. We quote from the MSS. opinion of Boardman, J.:—“A motion was made by defendant for a new trial upon the minutes, and denied. At the same time an order was made that the exceptions should be first heard at general term. This practice is irregular, and the latter order is a nullity” (Byrnes v. Delaware & Hudson Canal Co., 7 N. Y. Week. Dig. 549).
    
      Huntley & Bowen, attorneys, and Richard H. Huntley, of counsel, for respondents Mangam and Pratt.
    
      Ernest T. Fellows, for respondent Chandler.
   By the Court.—Horace Russell, J.

—The sections of the Code which control this matter are as follows :

“ Sec. 999. The judge presiding at a trial by jury may, in his discretion, entertain a motion made upon his minutes at the same term to set aside the verdict and grant a new trial upon exceptions, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law.”

“ Sec. 1,000. Upon the application of a party who has taken one or more exceptions, the judge presiding at a trial by jury may, in his discretion, at any time during the same term, direct an order to be entered that the exceptions so taken be heard in ithe first instance at the general term, and that judgment upon the verdict be suspended in the meantime. At any time before the hearing of the exceptions, the order may be revoked or modified upon notice, in court or out of court, by the judge who made it; or it may be set aside for irregularity by the court at any term thereof.”

1. It is claimed that the granting of the order that the exceptions be heard in the first instance at the general term, after denying the motion for a new trial on the minutes, was an irregularity. If it be granted that the power to grant a new trial upon the minutes and the power to direct exceptions to be heard in the first instance at the general term are not cumulative, but alternative, which is the theory of the appellant, still there was no such irregularity in regard to this motion as would justify the reversal of the order made below. It is a very common thing, on motions and on trials, for the court to refuse the relief sought and to grant other relief. And to hold that the action of the trial judge, in this case, was irregular, would be to decide that the action of judges in all such cases was irregular. In many such cases, the party moving was -entitled to only one remedy, and that, perhaps, not the remedy for which he moved, or the judge had a discretion which of two remedies to grant. A motion for one remedy did not necessarily preclude the judge, in refusing that, from granting the other. Here the chief judge, upon hearing a motion for a new trial upon his minutes, simply said : “ No, I will not grant that motion, I will order your exceptions to be heard in the first instance at general term.” The course pursued in this case by Chief Judge Curtis was exactly the same as that of the trial judge in Ross v. Harden (42 Super. Ct. 438).

A technical argument is made about the words “in the first instance,” in which it is urged that the judge,having heard the motion upon his minutes, it was a solecism amounting to an irregularity to afterward order the exceptions to be heard “in the first instance” at the general term. This argument is based on the assumption that the words “in the first instance” necessarily have no other meaning than “for the first time,” whereas, considering the context and the effect of an order granted under section 1,000, they might well be construed as if the words were “before entry of judgment.” Speaking technically, the exceptions are first heard when first made—when the objection is argued—during the progress of a trial. While, practically, a motion for a new trial upon the minutes and a motion that a judge direct exceptions to be heard in the first instance at the general term may be on the same grounds, technically they are not —at least, they are not necessarily. A motion for a new trial upon the minutes may be upon exceptions, or because the verdict is for excessive or insufficient damages, or contrary to the evidence, or contrary to the law (§999, Code). Whereas, upon exceptions directed to be heard in the first instance at general term, nothing else can be considered but those exceptions. On such an argument an appellant would not be permitted to present anything to the general term except what was distinctly raised by exception. He could not raise the question that the verdict was excessive or insufficient, or against the evidence. So, as it does not appear by the separate order printed in the appeal papers that the motion for a new trial upon the minutes was made only with reference to the exceptions taken during the trial, non constat, but that it was made on the ground, that the verdict was against the evidence, or was excessive, or that it was contrary to the charge of the judge, and the denial of a motion made upon the judge’s minutes upon such ground certainly would not bar the right a.nd power to direct exceptions to be heard in. the first instance at the general term. As this objection is purely technical, it must stand or fall by technical constructions. The only restriction upon the' power of the trial judge to entertain a motion for a new trial upon his minutes, is that the motion shall be' made' during the term of the trial, and the only restriction made by section 1,000 upon the power of the judge to direct exceptions to be heard in the first instance at the general term, either of his own motion or on the application of a party, is that such order shall be made at the term during which the case was tried. There is nothing in the language of the Code which would prevent these motions being made separately and successively (though they were not in this case), and there was no irregularity in the trial judge’s ordering the defendant’s exceptions to be heard in the first instance at the general term, at the same time that he denied a motion for a new trial upon the minutes. .

2. There is another ground on which the order denying the appellant’s motion should be sustained. The motion to set aside was for an irregularity. The order to show cause, on which the motion was heard, did not specify the irregularity complained of, as required by rule 37. It was not sufficient that the grounds of irregularity were specified in the affidavit (Montrait v. Hutchins, 49 How.Pr., 105).

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

Speir, J., concurred.  