
    ELBERT W. COOK, Appellant, v. PHELETUS ALLEN and others, Trustees, etc., Respondents.
    
      Motion for new 1/ridl at Special T&rm — pro forma denial of, i/rregula/r — Written instnnment— question as to construction of.
    
    Section 265 of the Code, requiring a motion for a new trial upon a case and exceptions before judgment, to be first made at the Special Term, contemplates a real, and not a mere formal review of such ease and exceptions at the Special Term.
    The denial of such a motion at Special Term, pro forma, in order to allow an appeal to be taken, is error.
    The proper construction of a written instrument is a question of law. When, however, the instrument is not produced, and there is a question as to its terms, such question is properly left to the jury.
    Appeal from an order made at Special Term, denying a motion for a new trial. The court at General Term was of opinion, from the papers in the ease, that the denial of the motion at Special Term was merely formal, in order to give opportunity to take an appeal to the General Term ; and though considering such practice-wrong, yet-, having heard the cause, the court waived the irregularity, and, after an examination of the case on the merits, concluded that the motion was properly denied, and affirmed the order of the Special Term.
    
      John O. Strong, for appellant. Lewis (& Gurney, for respondents.
   Opinion by

Smith, P. J.

Present ■ — - Smith, P. J., Gilbert and Merwot, JJ.

Order affirmed.  