
    Isaac R. Harris, App’lt, v. R. Nelson Gere, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 18, 1887.)
    
    I. Practice—Motion for new trial—Form, of order.
    The order entered upon a motion for a new trial upon the judge’s minutes, should always state the ground or grounds upon which the motion was made.
    8. Same—General term mat affirm or refuse to hear appeal from order.
    If the order does not state the ground, etc., and it be one denying the motion for a new trial on an appeal to the general term, it could affirm such an order appealed from, or refuse to hear the appeal until the order should he corrected by stating the question passed upon by the trial judge.
    8. Same—Presumption—Code Crv. Pro., § 999.
    The general term may entertain such an appeal, and when it does and reverses the order and grants a new trial, it must be assumed that its order was based upon some one of the grounds mentioned in Code Civil Procedure, section 998. Where the case presented disputed questions of fact, the reversal will be assumed to be up'on a question of fact.
    Appeal from an order of the supreme court, general fourth department, reversing an order of the trial judge denying a motion for a new trial upon the judge’s minutes.
    
      Louis Marshall, for app’lt; George F. Comstock, for resp’t.
    
      
       See 36 Hun, 639, mem.
      
    
   Earl, J.

—There were several questions of fact litigated upon the trial of the action and submitted to the jury, and they rendered a verdict in favor of the plaintiff. The defendant made a motion for a new trial upon the minutes of the trial judge, which was denied. Subsequently a judgment was entered upon the verdict, and then the defendant appealed from the order denying the motion for a new trial, and from the judgment to the general term, where both the order and judgment were reversed and a new trial was granted. The plaintiff then appealed to this court, giving the usual stipulation.

It is conceded by the learned counsel for the appellant that the court has no jurisdiction to hear this appeal, provided the general term may have granted a new trial upon a question of fact. And so we have frequently held. Wright v. Hunter, 46 N. Y., 412; Harris v. Burdett, 73 id., 136, and other cases. But he claims that this case was not so before the general term that it could reverse the order and judgment upon a question of fact. And in this we are constrained to differ with him.

Section 999 of the Code of Civil Procedure,provides that the judge presiding at the trial by a 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. It is not required that written notice of the motion for a new trial upon the judges minutes should be given. It may be brought on immediately after the rendition of the verdict without any previous notice. But it can be based only upon one of the grounds mentioned- in the section, and must be heard upon the minutes only. In the argument of the motion the ground upon which it is based will necessarily be disclosed, and the order entered upon the motion should, with propriety, always state the ground or grounds upon which the motion was made. If it do not, and the order be one denying a motion for a new trial, and an appeal be taken therefrom to the general term, it would usually be impossible for the appellate "court to know upon what ground the motion for a new trial was based, and what questions were before the trial judge for consideration. For aught that appears in such a case the motion may have been upon untenable ground, and hence the general term could, with propriety, refuse to hear such an appeal. Certainly, unless all the grounds for a new trial mentioned in section 999 existed, which would be very unusual. It could affirm such an order appealed from, or refuse to hear the appeal until the order should be corrected by stating the question passed upon by the trial judge. But we do not perceive why the general term may not entertain such an appeal, and when it does and the questions are argued and submitted to it for determination and it reverses the order and grants a new trial, then a different state of things exists. It such case it must be assumed that its order was based upon some one of the grounds mentioned in the section referred to, and where the case presented disputed questions of fact, it cannot be said that the reversal was not upon a question of fact. Hence, upon an appeal from such an order to this court, as the reversal may have been upon a question of fact, there is nothing for us to review.

Now what appears in this record? First. There is a recital immediately after the rendition of the verdict that the court thereafter denied the motion of the defendant for a new trial upon the minutes,” and then a formal order denying the motion appears to have been entered in these words: “A motion being made at this term of court by and on behalf of the defendant in this action for a new trial thereof, upon the minutes, now after hearing George N. Kennedy, Esq., of counsel, for defendant, in behalf of said motion, and W. P. Goddelle, Esq., and Louis Marshall, Esq., in opposition thereto, and, after due deliberation had thereon, it is ordered that said motion be, and the same is hereby in all things denied.” It thus appears that the motion was made to the court and formally argued, and, after due deliberation had thereon, was denied. It must be assumed that it was argued upon the merits, and, as the motion for a new trial was made upon the minutes, that it was based upon some one of the grounds mentioned in section 999.

From that order the defendant appealed to the general term. Subsequently judgment was entered, and then defendant also appealed from the judgment to the general term. Then there is the order of the general term which recites the appeal from the order denying the motion for a new trial and from the judgment, and that they have been duly brought on for argument, and reverses both the order and the judgment and grants a new trial. The general term did take jurisdiction of the appeal from the order of the trial judge. It did not refuse to hear the appeal for the reason that the order did not state upon what ground the motion for a new trial was based. It heard the parties, and, as we must assume, considered the case and decided the appeal upon its merits. It must have reversed the order upon some one of the grounds mentioned in section 999, but upon which ground it is impossible from this record to determine. It is sufficient to render it impossible for us to consider the appeal that the general term may have reversed the order and granted a new trial upon a question of fact.

If the case was so disposed of at the general term as to give this court jurisdiction to review its determination, its order should show the facts which confer the jurisdiction; and it may be possible for the appellant yet to procure the order to be so amended.

Our order, therefore, is that the appeal be dismissed with costs that the new trial ordered by the general term may be had, unless the appellant shall, at the first general term held in the fourth department, procure the order of reversal to be so amended as to give this court jurisdiction to hear the appeal, in which event the case is to retain its place on the present calendar and be argued at a time to be agreed upon by counsel. •

All concur except Ruger, Ch. J., not sitting.  