
    Brown vs. Crim.
    A defendant in ejectment cannot have a third new trial under the statute, (2 R. tS. 309, § 37,) though the first two were granted by the court of common pleas, whence the cause was removed to this court.
    Application on behalf of the defendant for a new trial, the action being ejectment, pursuant to 2 R. S. 309, § 37.
    The suit was commenced in the common pleas of Herkimer county, where the plaintiff had twice recovered verdicts and entered judgments, and upon each occasion the defendant had obtained a new trial under the statute. He then removed the cause here by certiorari, where the plaintiff obtained a third verdict, and entered judgment.
    
      E. Graves, for the defendant.
    
      V. Owen, for the plaintiff,
    objected that no more than two new trials could be had under the statute, whether in the common pleas or in this court.
   By the Court, Jewett, J.

The statute declares that no more than two new trials shall be granted under the provision referred to. I think the power is exhausted, and that the fact that the new trials already had were granted by the common pleas while the cause was pending there, does not create a distinction favorable to the defendant.

Motion denied.  