
    BROUGHTON a. MITCHELL.
    
      Supreme Court, Sixth District;
    
    
      General Term, May, 1865.
    Appeal to Supreme Court in Cause originating in Justice’s Court.
    Exceptions taken, upon the trial, in a County Court, of a cause brought to that court by appeal from a justice’s court, may be reviewed in the Supreme Court on appeal thereto from the judgment of the County Court, although a motion for a new trial has not been made in the County Court.
    
    
      A ruling of the County Court that is excepted to, is a ^decision of that court, and it need not be passed npon a second time in that court to authorize the Supreme Court to review it.
    The rulings of a referee on the trial of a cause in the County Court are deemed decisions of such court for this purpose.
    The Supreme Court may now review judgments of the County Court brought up by appeal, on exceptions that are made a part of the record, though the ex-
    
      ceptions have not been passed upon in the former court by a motion for a new trial in that court; and it may reverse the judgments of such court and grant new trials therein.
    The case of Carter a. Werner (27 How. Pr.. 385) disapproved, and that of Monroe a. Monroe (Ib., 208) adhered to.
    Appeal from a judgment of the Oounty Court of Delaware County.
    This action was brought by Rath an Broughton before a justice of the peace, to recover from Ransom Mitchell for an alleged breach of warranty of a horse the defendant sold to the plaintiff for $125. The plaintiff alleged that the defendant warranted the horse sound and right every way, and that he was unsound in his right hind-leg, and was vicious when being shod.
    The justice rendered a judgment in favor of the' defendant for costs. The plaintiff appealed from the judgment to the Delaware County Court, where the cause was duly referred to a referee to hear and determine. The referee reported and decided that the horse was all right as warranted by the defendant except as to the soundness of the right hind-leg, and that he was unsound in that leg, which unsoundness injuriously affected his gait and travel; and that the plaintiff had sustained damages by reason of the premises to the amount of fifty dollars; and that the plaintiff was entitled to recover that ■sum of the defendant, besides costs. The defendant made a case containing his exceptions, which was filed and made a part of the judgment-roll. After judgment was entered in favor of the plaintiff, the defendant appealed therefrom to this court, without making any motion for a new trial in the County Court.
    
      L. L. Bundy, for the plaintiff.
    
      William Youmans, Jr., for the defendant.
    
      
       It was held in Dixon a. Buck (42 Barb., 70) that although, by subdivision 6 of section 366 of the Code as amended in 1862, either party may move for a new-trial in the County Court on a case or exceptions, either before or after judgment has been entered, a party is not obliged to do so before appealing to the Supreme Court. A notice of motion for a new trial in the County Court is not necessary to be given before the case or exceptions can be made part of the judgment-roll. If the case is embraced in the return of the clerk, the Supreme Court will presume that it has been properly-attached and filed, with the other papers constituting the judgment-roll, even though the certificate of the clerk does not show affirmatively that it has been attached and filed. The presumption is that it has been done correctly. If it is not part of the judgment-roll, the respondent should move to strike the case from the return, on affidavits showing what the fact is in regard to it, or to have the return amended so as to contain the roll only. (Ib.)
      
      And in Whitney a. Wells (28 How. Pr., 150), on an appeal from a judgment of the County Court upon a case containing exceptions, in an action originating in a justice’s court, it was held that the Supreme Court could not set aside the verdict and grant a new trial on the ground that the verdict was against evidence ; the -motion for a new trial on that ground should first be made in the County Court before an appeal. But it was further held that the Supreme Court might reverse the judgment of the County Court, and grant a new trial in that court for an error in the charge of the county judge.
      In the case of Gannoh a. Campbell (Supreme Court, Second District; General Term, May, 1865. Present, Sorugham, Lott, and Barnard, JJ ), it was held that an appeal lies to the Supreme Court at general term from an order of the city judge of Brooklyn, denying a motion for a new trial made upon the judge’s minutes, without reference to whether any appeal has been taken from the judgment.
      This was a motion to dismiss an appeal taken under section 264 of the Code. The action was one to recover damages for the conversion of persdnal property, tried before the city judge of the city of Brooklyn and a jury. The jury found a verdict for the plaintiff. Upon the rendition of the verdict, the defendant made a motion before the city judge for a new trial upon his minutes, and the same was granted and the verdict set aside. From the order granting the new trial upon the judge’s minutes the plaintiff appealed, and made a case or bill of exceptions in the usual form.
      The defendant now moved to dismiss the appeal, upon the ground that the order of the judge granting a new trial upon his minutes was not appealable, unless there was a judgment .and an appeal from that, and that the court could not entertain the motion without the judge’s minutes before them. But the general term denied the motion to dismiss the appeal, holding that it was fully authorized by so much of section 264 as provides “ that when such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the' appeal must be heard,’ ’ and that the appeal was independent of the appeal from a judgment, and was the right of either party.
      Upon hearing the appeal, the order of the city judge granting a new trial upon his minutes was reversed, and judgment ordered for the plaintiff on the verdict.
      
        L. A. Fuller, for the plaintiff.
      
        Philip S. Crooke, for the defendant.
    
   By the Court.—Baloom, J.

The plaintiff’s counsel has made the point that the defendant could not appeal to this court until the County Court had passed upon the exceptions on a motion for a new trial in that court. He thinks the reasoning of the judge who delivered the opinion in Carter a. Werner (27 How. Pr., 385), in the fifth district, is more satisfactory than my opinion in Monroe a. Monroe (Ib., 208). It is true I overlooked a statute in Monroe a. Monroe, which is cited in Carter a. Werner. But that statute (2 Rev. Stat., 423, § 78) greatly strengthens my conviction that my conclusion in Monroe a. Monroe was correct. Neither that statute nor the preceding sections, 77,76, and 73, have been repealed by the Code, and they are in force so far as they are applicable to civil actions that are triable in county courts. (Laws of 1847, vol, 1, 330, §§ 36, 37.) Courts of Common Pleas could grant new trials on exceptions, or on the ground that the verdict was against evidence. (2 Rev. Stat., 208, § 1, subd. 2; Ib., 422, §76.) The County Court may now do the same. (Code, § 30, subd. 13.) The Supreme Court, before the Code, could review judgments of the Court of Common Pleas or County Court, brought up by writ of error, on exceptions that were made part of the record, though no motion for a new trial had been made in those courts. (2 Rev. Stat., 423, § 80; Laws of 1847, vol. 1, 323, 324, §§16, 17.) The Supreme Court may now review judgments of the County Court brought up by appeal on exceptions that are made a part of the record, though the exceptions have not been passed upon in the former court by a motion for a new trial in that court; and it may reverse the judgment of such court and grant new trials therein. (Laws of 1847, vol. 1, 323, 324, §§ 16, 17; Code,, § 344.)

An appeal will also lie to this court from an order of the County Court granting or refusing a new trial in an action tried in that court. (Code, § 30, subd. 13; Ib., § 344.)

But this court cannot grant a new trial in the County Court on the ground that the verdict was against evidence, until after a motion has been made in such court on that ground and denied, for the reason that such court must pass upon such a question, to authorize an appeal on that ground. (See Whitney a. Wells, 28 How. Pr., 150.) A ruling of the County Court that is excepted to is a decision of that court, and it need lot be passed upon a second time in that court to authorize his court to review it; and the rulings of a referee on the trial of a cause in the County Court are deemed decisions of such sourt. (Code, § 272.)

These reasons, and those assigned in Monroe a. Monroe, satisfy me that we should adhere to our conclusion in that case, and review the exceptions taken on the trial of this cause, though no motion for a new trial has been made in the County Court. None of the questions made respecting the viciousness of the horse when being shod need be noticed, for the reason that the final decision of the referee on that question was in favor of the defendant.

And I am of the opinion the referee did not err in any ruling he made upon the trial, on the branch of the case he decided in favor of the plaintiff.

My conclusion therefore is, that the judgment in the action should be affirmed, with costs.

Parker and Mason, JJ., .concurred.

Note to Broughton a. Mitchell.

The County Court has jurisdiction “. to grant new trials, or affirm, modify, or reverse judgments in actions tried in such court upon exceptions, or case made, subject to an appeal to the Supreme Court.” (Code, § 30, subd. 13.)

Section 366, subd. 5. “The [County] Court shall have the same power over its own determinations, the verdict of the jury, and shall render judgment thereon in the same manner as the Supreme Court in actions pending therein.”

Subd. 6. “Either party may move for a new trial in said court on a case -or exception, or otherwise, and such motion may be made before or after judgment has been entered; and the provisions of this act in relation to the proceedings on receiving the verdict of a jury, exceptions to the decisions of the court, making and settling case and exceptions, motions for new trials, and making up the judgment-roll in the Supreme Court, are hereby made applicable to all appeals brought up ‘ for trial as in this chapter provided.” (Code, § 366.)

In the Supreme Court, the defeated party, when he desires a new trial for erroneous-ruling of the judge at the circuit, is not obliged to move for a new trial before judgment upon his exceptions, either át the special or general term. He may prepare his exceptions and have them settled, await the entry of judgment, have the exceptions attached to and form a part, of the judgment-roll, and appeal to the general term from the judgment; and in such case argue his exceptions on such appeal at the general term and ask to have the judgment reversed, instead of asking simply to have a new trial granted. (Morange a. Morris, 12 Abbotts' Pr., 164; Jackson a. Fassit, Ib., 281; 32 Barb., 568; Ib, 650.)

If this course is allowable in the Supreme Court, there, is no good reason why the defeated party in the County Court may not have his exceptions settled and filed and made a part of the judgment-roll, and without making a motion for a new trial in that court, appeal in the first instance on the -law of the case to the general term of the Supreme Court,

It is provided by section 344 of ’the Code, that an appeal may be taken to the Supreme Court, from the judgment rendered by a County Court, or by the mayors’ courts or recorders’ courts of cities.” By section 346, such appeals must be heard at a general term. But security must be given upon such appeals according to section 345.

Any party aggrieved by a judgment of the County Court may appeal from it. (Code, § 325.) And the appellate court may reverse, affirm, or modify the judgment appealed from. (Code, § 330.)

The cumulative remedy given to the defeated party by a motion for a new trial in the County Court, does not deprive him of the right to appeal in the first instance from the judgment of that court to the Supreme Court.

The mode of reviewing the judgments of county courts is not affected in the least by section 351 of the Code, which repeals all previous statutes, providing for the review of judgments in civil causes, rendered by courts of justices of the peace, as Hr. Howard seems to suppose. (See-vol. 29 of his Reports, 68.)

A new trial for irregularity, or for any error of the jury at the circuit, must be applied for in the first instance at a special term of the Supreme Court; and so a new trial for irregularity or for an error of the jury in the County Court must be asked for in that court.

This note is made in consequence of the criticism upon Broughton a. Mitchell (29 How. Pr., 68). (b.) 
      
       Present, Parker., Mason, and Balcom, JJ.
     