
    EDWARD ROBERTS, Appellant v. AUGUST BAUMGARTEN, et al., Respondents.
    
      Ejectment—Eight to a new trial after one trial of an issue of fact and a judgment,'as a matter of right, under the Code of Civil Procedure.— Exceptions under the rulings in this case.
    
    This action is one of ejectment, tried on the 2nd day of June, 1884, at trial term, and judgment entered for plaintiff. Defendants appealed to the general term, which reversed the. judgment and ordered a new trial. Plaintiff appealed to the Court of Appeals, giving the usual stipulation required by the Code of Civil Procedure, consenting to the entry of judgment absolute in the event of an affirmance by the Court of Appeals of the order granting a new trial. The Court of Appeals did affirm the order of the general term of this court, and ordered judgment absolute against plaintiff on his stipulation, which judgment was entered in this court upon the remittitur in November, 1888. Afterwards, in January, 1890, an order was entered at special term vacating this judgment of 18S8, and granting a new trial as a matter of right under the statute and the Code of Civil Procedure upon tlie affidavit of plaintiff that costs and damages had been paid to defendants. Shortly afterwards the defendants moved at special term to set aside that order of January, 1890, on the ground that the judgment entered in November, 1888, upon the remittitur from the Court of Appeals, is not such a judgment as the statute and Code of Civil Procedure contemplated when the unsuccessful party is given one new trial as a matter of right in ejectment. The special term vacated and set aside the order of January, 1890.
    Held, upon the well considered opinion of the learned judge, who made the order appealed from, and the rulings of the Court of Appeals in cases cited in said opinion, that the judgment entered upon the remittitur from the Court of Appeals, in November, 1888, is not within the scope of the statutory provision that enables the unsuccessful party in ah action of ejectment to claim one new trial as a matter of right.
    Before Freedman, Truax and Ingraham, JJ.
    
      Decided December 1, 1890.
    Appeal' from order vacating an order granting a a new trial as a matter of right, on payment of damages and costs in an action of ejectment.
    The following opinion was delivered at special term.
    Dugro, J.—“ It seems that the Code provisions requiring a stipulation for judgment absolute against an appellant, if an order granting a new trial is affirmed (subd. 1, Sec. 191, Code Civil Proc.; subd. 2, sec. 11, Code Proc.), remained substantially unchanged, so far as they affect the question under consideration, during the existence of at least four different provisions as to new trials in ejectment actions, so that in endeavoring to interpret subdivision 1, section 191, and sections 1524-5, Code Civil Procedure, with respect to each other, the question is chiefly as to the intention of the lawmakers in originally requiring the assent, and as to their intention in enacting sections. 1524-5 of the present Code.
    “ In 1857, section 11 of the Code of Procedure was amended so as to require a stipulation for judgment absolute in cases where an appeal was taken to the Court of Appeals from an order granting a new trial. At that time and up to the passage of the Act of 1861 (post) the Revised Statutes provided that in ejectment actions a second trial, as a matter of right, could be had after a judgment where the judgment had been rendered upon a verdict. ' This right was allowed, in order to afford a way for relief against the accidents and misfortunes to which jury trials are peculiarly liable. Bay v. Gfage, 36 Barb. 448. In cases where the judgment had been entered after the stipulation, the assent being optional, none of the risks incident to jury trials were incurred. So the reason which induced the allowance of a new trial in cases where a judgment had been rendered on a verdict would not apply to cases where the judgment had been rendered upon the stipulation.
    “ It therefore appears that the stipulation required was one for judgment absolute as against the right of an appellant, inclusive of his right to a new trial after judgment, and the giving of the stipulation operated accordingly. Chapter 221, Laws of 1861. amended the Revised Statutes so that a new trial as a matter of right could be had after any judgmen in an action of ejectment, but this sweeping privilege was speedily cut down by an amendment (chap.. 485, Laws 1862), which provided, in .effect, that a new trial could be had as of right in an action of ejectment after ‘ judgment rendered upon a verdict of a jury or a report of a referee upon the facts, or upon a decision of a single judge upon the facts.’
    “ By the Code of Civil Procedure the law was again changed, so that it is now provided that a new trial may be had as a matter of right in the actions referred to 6 after a final judgment rendered upon the trial of an issue of fact ’ (sections 1524-5). '
    “ From a consideration of these changes in the law I am unable to discern any reason which would afford a fair basis for opinion that the effect of making the stipulation as to a judgment absolute is now I otherwise than it was in 1857, when the assent was first required. In addition, it may be said that in the present action, there is no judgment which was rendered upon a trial; the only one now in existence was rendered upon a stipulation, and it stands in effect as a judgment entered by consent.
    “ For these reasons it seems that the judgment rendered by the Court of Appeals in this action was not such a judgment as is referred to in section 1525, Code Civil Procedure.
    “ The necessary conclusion is that in an action of ejectment, after judgment absolute rendered by'the Court of Appeals upon the right of an appellant who has assented, as required by section 191 of the Code, no right to a new trial exists by virtue of section 1525.
    “ The motion to vacate the order of January 17th is granted.”
    
      Daniel G. Rollins, attorney, and Robert Hunter McGrath, Jr., of counsel, for appellant, on the questions considered, argued :—
    I. The only limitation upon the rights of suitors to successive trials in ejectment in this state is found in the provisions of the Code of Civil Procedure relating to actions for the recovery of real property ; and the unsuccessful party in such an action is, after the trial of an issue of fact, entitled as a matter of course to have the judgment vacated and one new trial awarded. This is a proposition easy of demonstration. Sections 1524 and 1525 of the Code of Civil Procedure are in the following words : Section 1524.—Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through or under him, by title accruing, either after the judgment roll is filed, or after a notice of the pendency of the action is filled in the proper county clerk’s office, as prescribed in article ninth of this title. Section 1525.—The court, at any time within three years after such judgment is rendered, and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs and all damages, other than for rents and profits, or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court, upon a like application, made within two years after the second final judgment is rendered, and the judgment roll is filed, may make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section. ■ Such provisions of these sections as grant a second trial in ejectment, as a matter of course, have been the law of this state for more than fifty years ; and they must be taken to embody the legislative view of the proper restrictions which should be imposed, and have by them been imposed, upon the rule of the common law in regard to new trials in ejectment. At common law a suit in ejectment never aimed at settling or professed to settle the right of property ; but the judgment determined the right to the possession of the property at the time of the institution of the suit. This followed from the very fiction upon which the litigation was founded. The plaintiff averred that he had received a demise from some fictitious individual, and that the defendant had deprived him of the possession of the property. It speedily became one of the rules of pleading that the defendant must admit the demise to the plaintiff and his prior possession. The question then to be decided by the court was whether or not the defendant or plaintiff could establish a right to the possession of the property. Obviously such an issue might be tried as often as an unsuccessful party in á particular suit chose, and was able to pay costs, since it was possible for him to receive a demise from an indefinite number of fictitious persons, upon each one of these fictitious demises founding a new suit to determine the possession of the property. These successive suits grew into such an abuse that persons harassed by the same litigant were accustomed to obtain relief in chancery by decrees enjoining the persistent suitor from further proceedings of the same character. Taylor e. d. Atkyns v. Horde, 1 Burrows, 60, 114; Jackson v. Dieffendorf, 3 Johns. 269 ; Bates v. Stearns, 23 Wend. 483. This being the common law was also the law of this state. It has been expressly decided that before the Revised Statutes a judgment in ejectment was no bar to another action between the same parties to recover the possession of the same property ; but only by the statute did such a judgment become conclusive as to the title established in the action. The Equator Company v. Hall, 106 U. S. 87 ; Jackson v. Dieffendorf (supra); Keeler v. Dennis, 39 Hun, 31. The language of the statute is imperative, and a party, on application to the court, showing payment of costs and damages recovered, must have a new trial; as to one new trial the courts have no discretion. Howell v. Eldridge, 21 Wend. 631 ; Rogers v. Wing, 5 How. 50.
    II. The judgment of November 27, 1888, entered in the Superior Court upon the remittitur from the Court of Appeals, is a judgment rendered upon the trial of an issue of fact. This proposition is the crucial point of the case. The Code of Civil Procedure in express terms provides for the granting of a new trial by the court after the entry of a final judgment rendered upon the trial of an issue of fact, and also contains a separate section regulating the granting of a new trial to the defendant after a final judgment rendered otherwise than upon the trial of an issue of fact. Unless, therefore, this judgment of November, 1888, is one rendered upon the trial of an issue of fact, there can be no new trial, the applicant being the plaintiff to whom § 1526 does not refer. An examination of the condition of the law regulating new trials before the Code of Civil Procedure will make very plain the meaning intended to be expressed by the legislature in that phrase “rendered upon the trial of an issue of fact.” It must be borne in mind, as has been said, that the statutory regulations of the action of ejectment are restrictive of the common law and not expansive ; hence it is by no means true, as was said by Judge Bockes, that the second trial is a statutory boon not to be extended by construction beyond the strict letter of the law. Bay v. Gage, 36 Barb. 447, 448. The Revised Statutes limited the right to a new trial in ejectment to those cases in which a judgment has been rendered against a party upon a verdict. Under their language it was held that no second trial, as of course, could be granted when the judgment had been rendered in a controversy submitted without action by consent of the parties ; such procedure neither constituted an action, nor could advantage be taken of the Revised Statutes, which applied only to a judgment founded on the verdict of a jury. Lang v. Ropke, 1 Duer, 701. Nor, for the latter reason, could a new trial be ordered after a judgment upon a demurrer. Christy v. Bloomindale, 18 How. 12. In a subsequent case, also, the general term of the supreme court held that no new trial as of course could be granted where the judgment had been entered upon the report of a referee after a hearing upon the merits, the statute expressly restricting the right to a judgment rendered upon a verdict. Shortly before this latter decision, but after the commencement of the action in which it was made, the legislature struck out the words “ upon a verdict ” and amended the statute .to read as follows : “ Section 36.—Every judgment in the action of ejectment shall be conclusive as to the title established in such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such a party by title accruing at the commencement of such action subject to the exceptions hereinafter contained.” (Rev. Stat., Chap. 5, Tit. 1. Part 3. Session Laws 1861, C. 221. This exception was that of a judgment rendered by default. Any other judgment, whether rendered upon the trial of an issue of law or of fact might be set aside and a new trial granted if only the party against whom the judgment was entered did not allow it to be entered by default. A year later, however, the legislature again changed the law and thus altered section 36 : “ Every judgment in the action of ejectment rendered upon the verdict of a jury, or a report of a referee upon the facts, or upon the decision of a single judge upon the facts, shall be conclusive as to the title established in such action upon the party against whom the same is rendered and against all parties claiming from, through or under such party by title accruing after the commencement of such action subject to the exception hereinafter contained. (Sessions Laws 1862, Chap. 485.) The exception hereinafter contained was still that of a judgment rendered upon a default, In this condition the law remained until the passage of the Code of Civil Procedure. Nor upon an examination of the Code is it difficult to arrive at an understanding of that expression “ after the trial of an issue of fact,” since the Code itself defies its meaning. “ An issue arises when a fact or conclusion of law is maintained by one party and controverted by another. Issues are of two kinds ; (1) of law ; and (2) of fact,” (Co. Civ. Proc., § 963.) “ An issue of law arises upon a demurrer ” (§ 964.) Now if an issue of law arises only upon a demurrer, it is evident that sections 1524 and 1526 provide for a new trial in ejectment in every possible case. Section 1524 provides for the setting aside of a judgment rendered upon the trial of an issue of fact. Section 1526 abandons the old phrase default, about which there was always some question whether or not it included a submitted controversy, and whether or not it included a judgment rendered upon a demurrer (Co. Civ. Proc., § 1526, Throop’s Notes), and substitutes therefore the general provision, “ otherwise than upon the trial of an issue of fact.” Certainly it is not unreasonable that a party who has suffered a judgment in ejectment to be entered against him by default should be obliged to show cause why he should have a new trial; nor is it unreasonable that when a judgment in ejectment has been rendered upon the trial of an issue of law, the party seeking a new trial should be obliged to offer some reason why the court should exercise its discretionary power. Hence section 1526 declares the judgment binding upon the defendant, only it does not affect thq plaintiff. This judgment of November 27, 1888, was certainly not entered by default, nor was it entered on a demurrer. Plainly it was rendered upon the trial of an issue of fact. The case came on to be tried at the special term and the parties waived a jury ; judgment was subsequently entered in favor of the plaintiff; the defendants appealed from that judgment (there will hardly be a contention that this judgment was not rendered upon the trial of an issue of fact) and obtained an order of the general term reversing and granting a new trial. The plaintiff in his turn appealed to the Court of Appeals from the order of the general term granting a new trial. It must bo recollected that with the entry of that order there ceased to be in existence any judgment. The one judgment entered in the action, that upon the trial of an issue of fact at special term had been reversed and held for naught by the general term. The appellant as a condition to ascertaining from the court of last resort whether or not a new trial had been rightly granted, found himself confronted by a statutory obligation to consent to the entry of judgment absolute against him should the Court of Appeals affirm the order of the general term. This he did; and the Court' of Appeals did affirm the order of general term ; and ordered the lower court to enter judgment absolute upon the stipulation. How can this judgment entered upon the stipulation be other than one rendered upon the trial of anissueof fact? The counsel for the defendants contended in the court below that, having been rendered on a stipulation, its nature was in some mysterious manner changed. There can be no judgment under our practice except as the termination of an action, and, save in the case of a default, as the consequent of a trial either of “ an issue of fact ” or of “ an issue of law.” One of those phrases is used in the very section under consideration relating to ejectment, while the Code of Civil Procedure says that an issue of law arises only upon a demurrer. Manifestly every other judgment must be a judgment after the trial of an issue of fact or upon default. The true doctrine is that the entry of a judgment, ’ by order of an appellate court,' is nothing more or less than the original entry of a proper legal judgment by the court in which the action was tried. After the reversal by the general term of the judgment entered at the trial, the judgment entered upon the remittitur from the Court of Appeals was the true legal judgment rendered after the trial of an issue of fact. In Phyfe v. Masterson 45 Super. Ct. 338 is a contention very much like that of the learned counsel for the defendants, on the argument of this motion at the special term. There had been a trial before a court and jury in ejectment, and a verdict rendered for the plaintiff. The court ordered that the entry of judgment be stayed, and the defendant’s exceptions be heard in the first instance at general term. Afterwards, at general term, the defendant’s exceptions were overruled, and judgment ordered for the plaintiff. When the defendant obtained an order vacating that judgment and granting a second trial under the statute, the plaintiff appealed to the general term, urging strenuously that the judgment was not within the statutory provisions (at that time 2 Rev. Stat. p. 309, § 36), because it was a judgment not' following the verdict of a jury, but entered upon an order of the general term. This is precisely the claim here : that the judgment is not one rendered after the trial of an issue of fact, but one entered on a stipulation by order of the Court of Appeals. This objection the court held to be invalid, saying : “ The court at the trial ordered that the entering of judgment thereon (the verdict) be stayed, and that the defendant’s exceptions be heard in the first instance at the general term. The exceptions were overruled at general term, and the order directed that the plaintiff have judgment on the verdict. When the plaintiff entered this judgment it was therefore upon the verdict of the jury.”
    
      III. The provision of the Code of Civil Procedure requiring a stipulation for judgment absolute to be given by the party appealing from an order of the general term granting a new trial does not affect the right to a second trial in ejectment. Subdivision 1 of § 191 of the Code of Civil Procedure, fixing certain limitations to the right to appeal to the Court of Appeals given in the section immediately preceding is in the following words : “ An appeal cannot be taken from an order granting a new trial, on a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant.” It is insisted by the defendants in this action that as judgment was rendered in their favor upon the stipulation of the plaintiff given upon his appeal to the Court of Appeals from the order granting a new trial, such judgment absolutely and forever determines the matters in litigation in this action ; and that §§ 1524, 1525, regulating new trials in ejectment have no application. This view was adopted by the learned judge at special term. He bases his decision upon the curious reasoning taken from the' erroneous case of Bay v. Gage, 36 Barb. 448, that a new trial in ejectment was one allowed in order to afford relief against the accidents and misfortunes to which jury trials are peculiarly liable, arguing further that where a stipulation for judgment absolute has been given after trial, as there were none of the risks incident to jury trials, it must be assumed that the intention of the law makers was not to extend a right to a new trial to such cases. The object of subdivision 1 of § 191 of the Code of Civil Procedure, is merely to attach a penalty to certain appeals to the Court of Appeals. Appeals under the old practice were confined to final judgments or decrees and the granting of the right to an appeal from an order granting a new trial was an innovation. As a condition to the enjoyment of this innovation the appellant was obliged to give the stipulation in question. Now, the object of this provision is only the prevention of appeals ; and it has been said by the Court of Appeals that it has proved a trap, and that the appellant under such a stipulation runs the risk of any errors that may be found by the appellate court in the whole record, and that affirmance must follow though the appeal from the order were well taken. Mackay v. Lewis, 73 N. Y. 382 ; Krakeler v. Thaule, 73 lb. 608 ; Simar v. Canady, 53 lb. 298. In any action other than that of ejectment, where one trial is finally determinative of all the matters in controversy, such a stipulation as this is, of course, conclusive upon the rights of the appellant. It must be observed that § 191 requires an assent upon the part of the' appellant to the entry of judgment absolute against him, whereas § 1524 only becomes operative after the entry of judgment, which, under its provisions, shall be vacated on payment of costs and damages. There is no incongruity in these sections of the Code of Civil Procedure, and they may be fully effectual side by side, without need of the forced construction claimed by the respondents. A careful reading of §191 shows no other meaning in the phrase “judgment absolute ” than a wish for the absence of confusion. Any other phrase without the word absolute would have left doubt and produced .interpretative litigation. There seems now to be but one case in which the courts have endeavored to construe that part of this section which requires judgment to be entered upon the right, of the appellant. In The People v. Dennison, 8 Abb. N. C. 145, the plaintiff appealed from an order of the general term granting a new trial ; the answer in the action had set up a counter-claim, which had not been adjudicated upon by the judgment in the court below, and although the Court of Appeals entered judgment absolute upon the stipulation of the plaintiff on affirming the order of the general term, granting a new trial, it was held that affirmative judgment for the counterclaim could not be entered on such a stipulation. “ What does the section mean,” said the court. “The court must render judgment absolute upon the right of the appellant. Is there no significance in these words, ‘ the right of the appellant ? ’ The court is not to render an absolute judgment for every claim made by the defendant in his pleading, but upon the right of the appellant which the appeal involves and which the order appealed from denied; Now the right of the appellant involved in the appeal from the order of 1885 granting a new trial, was the right to have or not to have such a new trial ; and if the Court of Appeals should, as they did, enter a judgment against him, the effect of such judgment was final and terminated his right to a new trial by an absolute judgment; but that absolute judgment did not and could not interfere with the positive provisions of § 1525 of the Code of Civil Procedure granting the second trial in the particular action of ejectment.
    IV. The plaintiff applied to this court for an order vacating the judgment and granting a new trial within the three years fixed by the Code of Civil Procedure. The Code of Civil Procedure awards the party' against whom a judgment has been entered a new trial at any time within three years on payment of damages and costs. Here the first judgment entered in December, 18 84, was in favor of the plaintiff. He could not move to have that set. aside. The defendants thereupon appealed and procured an order reversing the judgment. The first and only judgment entered against the plaintiff or in favor of the defendants was that upon the remittitur from the Court of Appeals on the 27th day of November, 1888. The plaintiff applied to this court on the 17th day of January, 1890, not quite two years after the entry of the judgment. The case is readily distinguishable from that of White v. The Chautauqua Bank, 23 N. Y. 347, which was an action of ejectment where judgment was entered in favor of the plaintiffs in 1852. In 1856 and 1857 that judgment was affirmed respectively by the general term and by the Court of Appeals. In 1859, seven years after the entry of judgment, a motion to vacate the judgment and for a new trial was made, but denied upon the ground that the three years contemplated by the statute were three years from the entry of the final judgment and not from the entry of orders affirming such final judgment. In the present case there is no such question.'
    V. If the judgment of November 27th, 1888, is not a judgment rendered upon the trial of an issue of fact, then it is not within the provisions of any statute of the state, and the plaintiff, relegated to his common law rights, is entitled to any number of new trials. The Equator Company v. Hall, 106 U. S. 87.
    
      Cephas Brainerd, attorney and of counsel, for respondents, on the questions considered, argued:—
    I. The Code of Civil Procedure provides (§1524), that a final judgment rendered upon a trial of an issue of facts in such an action as this is final and conclusive, unless it comes within the exception expressly prescribed in the statute. That exception is made in unmistakable language in the next section (§1525), which is, that at any time within three years after such a judgment [i. e., a judgment on the trial of an issue of fact] is rendered, and the judgment roll filed, a new trial may be had. The operation of this statute is confined with the utmost strictness to the case specified in it. And so it has been held under the forms which this particular provision has at various times assumed. In Bay v. Gage, 36 Barb. 448, a new trial was allowed when the action was tried before a referee, an amendment of the statute having in terms provided for that case. In Sacia v. O’Conner, 79 N. Y. 260, a new trial was refused, where the defendant withdrew his answer and a judgment was entered on a default. In Fowle v. DeWitt, 14 Hun, 93, the court intimates clearly its opinion that a new trial cannot be had where the complaint is dismissed. In Chatauqua Bk. v. White, 23 N. Y. 347, it was held that the statute applied to no judgment other than that rendered on the trial of an issue of fact in the first instance, not to a judgment rendered on an appeal. See also Lang v. Ropke, 1 Duer, 701. So that if the determination of the Courof Appeals in this case had been adverse to the defendants, it is probable their right to a second trial would have been lost by lapse of time, unless saved by the provisions of §1526, which are wholly for the benefit of defendants, and accord no rights to plaintiffs in ejectment. The opinion of Mr. Justice Dugroís full upon the changes which the statute has undergone.
    II. The judgment in this action is not a judgment on an issue of fact within §§1524-1525 of the Code. No question of fact went to the Court of Appeals for trial. The order of the general term did not reverse on questions of fact. The only questions that could be considered or disposed of in the Court of Appeals were questions of law. See Finch, J., per Curiam, (p. 462), in Inglehart v. Hotel Co., 109 N. Y. 454. . Here there is no judgment but that of the Court of Appeals, made the judgment of this court, and so the order refusing the new trial was right,—(1). Because the judgment is not oh the trial of an issue of facts, and—(2). Even if it could be held to be on an issue of facts, it is not otherwise the judgment contemplated by the Code. See also Baylies on New Trials, p. 210.
    III. Quite likely if the defendant had taken the new trial ordered by the general term, and a judgment had been then rendered against him, he would have had a right to a new trial. That right was involved in the case. He did not take the new trial;' on the contrary he elected to stipulate and go to the Court of Appeals ; he forced the defendants to submit an agreed case to that court. This he could do by stipulating that if there was no error of law in reaching the result at general term, there should be judgment absolute upon his right in the action. The Court of Appeals examined the record, no error of law was discovered, and it affirmed the order appealed from, and judgment absolute was ordered against the plaintiff on the stipulation not on the trial of an issue of fact. Clearly Mr. Justice Dugro was right in declaring in his opinion that the stipulation and the judgment were “ inclusive of his right to a new trial.”
    IV. The defendants, therefore, contend that the judgment in this action is conclusive against the plaintiff as respects every right involved in that action ; that it terminated all contention in that action. Bouvier says “ Absolute, complete, perfect, final, without any condition or incumbrance.” If, however, the contention of the plaintiff is sound, this judgment, which the Code says is absolute upon the right of the plaintiff, was, in fact, nothing at all, and the Court of Appeals in this particular case, was a mere moot court. All the cases in the Court of Appeals, though none appear to have been in ejectment, are strong against the claim sought to be maintained by the plaintiff. Cobb v. Hatfield, 46 N. Y. 533 ; Hitchings v. Van Brunt, 28 lb. 335 ; per Woodruff, p. 341 ; per Bacon, p. 345 ; Hiscock v. Harris, 80 lb. 402; Earl J. per Curiam, p. 406-7; Godfrey v. Moser, 66 N. Y. 250.
    V. It is to be observed that there is no disposition in courts to extend the right to a second trial beyond the language of the statutes according it; the reason for the rule, if there ever was a sound one, has long since ceased to exist. The adjudications in this state, already cited establish this. See also Equator Co. v. Hall, 106 U. S. 87 ; Spencer v. McGowan, 53 Texas, 30 ; Miles v. Cauldwell, 2 Wall. 25 ; Sedgwick & Waite, in trial of Titles to Lands, §§ 608-9.
   By the Court.—Freedman, J.

The question involved is a novel one. Many considerations have been advanced for and against the right to a new trial in a case like the present under the provisions of the Code of Civil. Procedure in force at the present time. The question can only be settled by the Court of Appeals and it is important that it should be settled. As the learned judge who made the order appealed from, rendered a well considered opinion, I think it is best, especially in view of the rulings of the Court of Appeals in Godfrey v. Moser, 66 N. Y. 250 ; Hiscock v. Harris, 80 lb. 402, and Conklin v. Snider, 104 lb. 641, as to the effect to be given to the stipulation for judgment absolute filed by an appellant to that court, that the order should be affirmed.

Order affirmed with ten dollars costs and disbursements.

Truax and Ingraham, JJ., concurred.  