
    William Yaw, Respondent, v. Valentine F. Whitmore and Others, Appellants.
    
      Assessment of damages, after judgment absolute in the Court of Appeals — the proper procedure where a motion is made for a new assessment — appeal, on what heard and where heard.
    
    The practice on an assessment of damages, had under section 194 of the Code of Civil Procedure, after the affirmance by the Court of Appeals of an order granting a new trial on a case and exceptions, is not prescribed by the Code of Civil Procedure, but may be established by the court.
    The judge who presides at the assessment has power to entertain a motion for, a new assessment made upon the minutes immediately after the rendition of the verdict, and is not obliged to send the motion to the Special Term.
    
      
      Semble, that if an appeal is taken from the order made upon the motion, a case • and exceptions should be made and. settled.
    
      Semblé, that a motion- for a new assessment -is addressed largely to the discretion, of the court, and that an appeal from the order made on such motion may he taken to the Appellate Division, but not to the Court of Appeals.
    Appeal by the defendants, Valentine F. Whitmore and others, from an order of the Supreme Court; made ¡at, the Monroe Trial Term and entered in the office of the clerk of the county of Mon-. roe on the 27th day of June, 1901, denying the defendant’s motion to set aside a verdict on an assessment of damages upon the ground of want of power.,
    
      Joseph W. Taylor, for the appellants.
    
      C. C. Werner, for the respondent.
   Williams,. J.:

The order appealed from should be reversed and the matter sent back to the trial justice to entertain and determine the same on the merits, with ten dollars costs and disbursements.

The action was brought to recover damages for personal injuries. On the last trial the court ordered a verdict for defendants. The Appellate Division set aside that verdict and ordered a new trial. The defendants gave the usual stipulation ¡and appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division and Ordered judgment absolute for the plaintiff. Thereafter there was an assessment of damages in trial court before a jury and a verdict rendered.

Immediately upon the rendering of this verdict the defendants moved, upon the minutos to set the, same aside on the grounds that-the- damages were excessive, that the verdict was "against the evidence and that errors were committed on the trial, and asked the court to hear argument and pass upon the merits of the motion. The court declined to do so, solely on the ground that the Trial Term had no-power to entertain the motion, and-that such motion must be made at Special Term. The papers, printed in the record, are the summons, pleading.and stenographer’s minutes taken on the assessment of damages. Ho case and exceptions has been made. The order recited no papers as read upon the motion. It is simply-stated that the motion was made “ upon the coming in of the verdict ” upon the minutes.

The only question before us is whether the trial court had power to entertain the motion and determine it upon the merits. We cannot, in the absence of any case and exceptions or proof by affidavit as to what occurred on the trial, assume to determine the motion upon the merits, because we are not informed in any legal way as to what occurred upon the trial.

We are, therefore, merely to pass upon the question of power raised by the trial court. Section 194, Code of Civil Procedure, provides, among other things: “ Upon an appeal from an order granting a new trial on a case or exceptions, if the Court of Appeals determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of the appellant; and after its judgment" has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court.”

Section 1232 of the Code of Civil Procedure does not provide for an assessment of damages in the trial court, or for a review thereof, but only an assessment by a writ of inquiry out of court. Section 1215.does not provide for an assessment of damages in cases arising under section 194, but only in cases of default in answering or demurring under section 1214. There seems to be no special provision made in the Code of Civil Procedure as to the practice on the assessment of damages in cases arising under section 194.

It has been held that in cases of assessment of damages both on default and under section 194, no review can be had in.the Court of Appeals because no questions of law are involved, but only questions of fact, and as to the facts a review may be had in the Appellate Division.' (Bossout v. R., W. & O. R. R. Co., 131 N. Y. 37; Bassett v. French, 155 id. 46.)

In Bossout v. R., W. & O. R. R. Co. there was quite an extended consideration of the practice in cases of assessment of damages under section 194 of the Code of Civil Procedure. The question arose upon a motion to dismiss the appeal to the Court of Appeals. The assessment was in open court before a jury, and on the rendering of the verdict the defendant moved on the judge’s minutes for a new trial on the ground that the damages were excessive, that the verdict was unsupported by-the evidence and contrary to law, and upon all the exceptions taken on the trial. The court denied the motion and the defendant excepted. Judgment was entered and the defendant appealed from such judgment and the order denying the motion for a new trial to the General Term,, where both the judgment and-order were affirmed, and then' the appeal was taken to the Court of Appeals. The motion to dismiss in the Court of Appeals was granted. The court, in its opinion, stated that the practice in a proceeding to assess damages in such cases is not specially laid down in the Code,” and, among other things, said: “The result of our examination is to show that the proceeding for the assessment of damages in order to render the judgment absolute effectual, as provided for in the Code, is one which is not like a trial - of an action at Circuit, and the rules for reviewing the trial of an action do not prevail in regard to this proceeding. There- is no provision for making a case and exceptions or for a motion for a new trial on the judge’s minutes. After the completion of the trial a motion may be made to set aside the inquisition, but the motion will not be granted upon the same "grounds ás a new trial would be for the mere admission of Improper evidence. It is a motion addressed largely to the discretion of the court in which the proceeding takes place, and when refused as not tending to the ends of justice, a judgment entered upon the inquisition does not become one- which is reviewable by the court upon legal grounds. There would seem to be no doubt that under the well-established rule an appeal might he -taken from the order of the Special Term refusing the motion to set aside the inquisition to the General Term of the court as the judicial discretion exercised by the court in granting or refusing the motion - is not confined to the Special Term.' But we do not see that any provision is made for an appeal to this court from the order or judgment of the General Term in such a proceeding,” etc.

This language by the Court of Appeals should not -be misunderstood. Several things appear therefrom which should be noted. -

'First. The practice in assessment of damages under section 194 of the Code of Civil Procedure and the review thereof is not specifically provided for in the Code itself.

Second. While there is no provision for an ordinary case and exceptions, or for the Ordinary motion for a- new' trial, upon the judge’s minutes, still a motion may be made after the verdict is rendered to set aside the inquisition or verdict.

Third. The grounds of such motion are not the ordinary legal ones involved in motions made after the trial of the issues in a case, but such motion is addressed largely to the discretion of the court, to the end that substantial justice may be done.

Fourth. An appeal may be taken from the order made on such motion to the Appellate Division, which has a supervision over the Special Term in the granting or denying of such motion. But no appeal lies to the Court of Appeals from its decision in the matter.

Fifth. There is no. provision of the Code, nor has the Court of Appeals indicated any opinion, as to when or where or upon what papers the motion shall be made to set aside the verdict or inquisition of the jury, and the practice is, in this respect, open to the consideration and determination of this court.

The trial judge, in refusing to entertain the motion, put his decision upon the ground that the same could not be heard at the Trial Term, but must be made at Special Term.

In this the judge was clearly in error. There was a Special Term for motions being held with the Trial Term, and the motion could be heard therein, as well as at a Special Term, to be held at some later time, separate and apart from a Trial Term. Very likely what the trial judge meant was that it could not be made like an ordinary motion for a new trial upon the judge’s*minutes, but must be made upon papers of some kind showing what had occurred upon the assessment, and this is the really important consideration.

In Bossout v. R., W. & O. R. R. Co. the practice was adopted, and so far as we know this has been the usual practice — making the motion on the rendering of the verdict upon the minutes of the court — and then if an appeal is desirable, a case and exceptions to be made and settled. This is certainly the better procedure, and we are aware of no legal objection to it. There is no reason why the motion should not be made at Trial Term immediately after the verdict is rendered, but every reason why it should, be so made before the judge who presided at the hearing and immediately after the close of the hearing, when the whole matter is fresh in his mind. And why may it not be made upon the minutes of the court, with the understanding that in case of an appeal the minutes shall be made certain by the settlement of what may be called a case and exceptions ? There is no provision for such a case and exceptions in the Code, very likely, but the whole procedure here- is entirely unprovided for by the Code, and the court is left to establish the procedure itself. Certainly the motion could be made upon the stenographer’s minutes, sworn or certified to be correct. They are the minutes of the court. The settling of a case and exceptions merely enables both parties and the court to correct any mistakes,, and makes the minutes certain, and. perhaps limits the extent thereof so that they shall not be too voluminous. In this case there was no objection made that a notice of motion had not been served with a copy of the papers on which the motion was to be heard.

We may assume, therefore, that the motion was properly made without a formal notice. There was no objection that there were no. papers served upon which the motion could be heard. It was offered to' be made and heard on the minutes of the court. The minutes were kept by the stenographer and were subject to correction by the court. The objection to considering the motion was not based upon the claim that the minutes were not or could not be made certain.

•We think the court had power to hear the motion, and that it was-error to refuse to hear and determine it on the ground of want of power.

The order appealed from should, therefore, be reversed and the-matter sent back to be heard and determined at a Special Term to-be held by the judge who presided on the assessment of damages, the hearing to be upon the pleadings and the minutes of the court; evidenced by the stenographer’s minutes, proved or certified, or made and settled in the form of a ease and exceptions, as the counsel shall agree. Ten dollars costs and printing disbursements allowed to appellant to be deducted from final recovery by the respondent, in the action.

All concurred.

Order reversed and case sent back to the trial justice to entertain and determine the same; ten dollars costs and disbursements allowed, to the appellant to be deducted from any damages recovered.  