
    SUPREME COURT.
    Nathan Boughton agt. Ransom Mitchell.
    The supreme court can 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 trialin that court; and it may reverse the judgments of such court and grant new trials therein. (Adhering to the decision in the case of Monroe agt. Monroe, 27 How. Pr. Rep. 208.)
    But this court cannot grant a new trial in the county court on the ground that the verdict was against evidence3 until after a motion has been made in such court on that ground and denied.
    A ruling of the county court that is excepted to, is a decision of that court, and it need not be passed upon a second time in that court to authorize this 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 court. 
    
    
      
      Broome General Term.
    
    
      Argued January, 1865.
    
      Decided May, 1865.
    
      Before Parker, Mason and Balcom, Justices.
    
    This action was brought before a justice of the peace to recover 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 plaintiff.
    
    William Youmans, Jr., for defendant.
    
    
      
      Note.—Section 351 of the Code says: “ All statutes now in force providing for the review of judgments in civil cases, rendered by courts of justices of thepeace, * * * and regulating the practice in relation to such review, are repealed', and hereafter the only mode of reviewing such judgments shall he an appeal, as prescribed by this chapter. “ The appeal shall be to the county court of the county where the judgment was rendered (§ 352). “ 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 (§ 366, sub. 5). “ Either party may move for a new trial 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 trials3 and making up the judgment roll in the supreme court3 are hereby made applicable to all appeals brought up for' trial as in this chapter provided (Id. sub. 6). “ A motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken, the judge trying the cause may at the trial direct them to be heard in the first instance at the general term, and tlie judgment in the meantime suspended; and in that case they must be there heard in the first instance, and judgment there given (§ 265, sub. 1).
      If all prior statutes regulating the practice in relation to the review of judgments of justices of the peace are repealed by section 351 of the Code, it would seem that not only the writ of error to the common pleas or county court, which the Revised Statutes provided for bringing up for review such judgments, but the exceptions that were made part of the record, and which might be heard though no motion for a new trial had been made in those courts, were alike swept away. For the provisions for the review of such judgments mentioned in this section, must be considered as applicable to all the courts that are authorized to review them. That such is the proper construction of this section, would seem to be confirmed by the provisions of section 366 above .quoted, making applicable the practice of the supreme court to all appeals brought up for trial in the county court.—Rep.
    
   By the court, Balcom, 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 agt. Werner (27 How. Pr. Rep. 385), in the fifth district, is more satisfactory than my .opinion in Monroe agt. Monroe (27 How. Pr. Rep. 208).

It is true I overlooked a statute in Monroe agt. Monroe, which is cited in Carter agt. Werner. But that statute (2 JR. S. "423, § 78), greatly strengthens my conviction that my conclusion in Monroe agt. 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, p. 330, §§ 36, 37).

Courts.of common pleas could grant new trials on exceptions, or on the ground that the verdict was against evidence. (2 R. S. 208, § 1, sub. 2; Id. 422, § 76.) The county court may now do the same {Code, § 30, sub. 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 R. S. 423, § 80; Laws of 1847, vol. 1, pp. 323 and 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 anew trial in that court, and it may reverse the judgments of such court and grant new trials therein. (Laws of 1847, vol. 1, pp. 323 and 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, sub. 13 ; Id. § 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 agt. Wells, 28 How. Pr. Rep. 150). A ruling of the county court that is excepted to, is a decision of that court, and it need not be passed upon a second time in that court to authorize this 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 court (Code, § 272).

These reasons, and those assigned in Monroe agt. 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., concurring.  