
    NEW-YORK COMMON PLEAS.
    James Maloney agt. James Dows.
    Where an exception is taken to the decision of the court granting a non-suit, and the court does not order that .the case be sent at once to the general term, a motion for a new trial on such exception (before judgment) may be made at the special term. Such motions are embraced under the general head of motions for a new trial, in section 265 of the Oode. (As to the power of another ■ judge to sit in review of such exceptions, see Ryle agt. Sarrington, 14 Sow. 59; and Jaclcson agt. Fassit, 11 Sow, 453.)
    
      New-York Special Term, August, 1859.
   Daly, First Judge.

An order ought to have been made at. the trial, directing that the exception taken to the decision of the court, granting the motion for a non-suit, should be heard in the first instance at the general term. The question was a new and an important one. It ivas very fully and elaborately argued upon both sides. The decision disposed of the whole of the plaintiff’s rights, and it was, therefore, eminently proper to send the case at once to the general term, and to suspend, in the mean while, the entry of judgment. It was my impression that it was the general understanding of all parties at the time, that that course was to be taken, and it was certainly my intention to have made such an order. If it be doubtful whether I can make such an order now, a point that I do not feel called upon at present to pass upon, there is no doubt in my mind of the plaintiff’s right to make a motion at the special term for a new trial, and as, unless the defendant wishes to have three arguments, a formal order denying a new trial will accomplish the same purpose as if the proper order had been made at the trial, I Avill confine myself to the examination of the question, whether there is any room for doubt as to a plaintiff’s right to make such a motion, where he has been non-suited.

The remedy in a case of this kind, before the Coc^e, was by a motion, founded upon a case or bill of exceptions, to set aside the non-suit, which was, in effect, a motion for a new trial, which would follow as a matter of course, if the motion was granted. (Pratt agt. Hull, 13 Johns. 334 ; Packard agt. Hill, 7 Cow. 434; Wormouth agt. Cramer, 3 Wend. 394; Graham on New Trials, 280, 282, 1st edition; Graham's Practice, 2d edition, 312.)

It was embraced in the class then known as enumerated motions, which was heard in this court by all the judges sitting in banc, every Saturday, and in the supreme court the motion was heard in the first instance, before the circuit judge, unless he should direct that it be carried immediately before the supreme court. (Laws of 1832, p. 188 ; Laws of 1833, p. 395; Hicks agt. Chamberlain, 12 Wend. 254.)

If the party seeking the review Avished to prevent the entry of a judgment, he obtained an order staying proceedings until the motion was heard and disposed of, but the motion might be made, though judgment had been perfected and execution issued, and, if granted, the court Avould order restitution. (Laws of 1832, chap. 128, § 1, p. 188.) If the motion Avas denied, an appeal lay to the supreme court, from the decision of the circuit judge.

The Code has made no material change as to the course of procedure, where the object, is to obtain a new trial. The application, by motion to the special term, in the first instance, except when the judge at the trial directs it to be heard in the first instance at the general term, is analogous to the former motion, before the circuit judge or before the judges of this court or of the superior court, and the appeal from the order granting or refusing the new trial is the establishment in the three courts of the practice, which, before the Code, prevailed only in the supreme court, while the appeal upon the law to tire general term from the j udgment is a substitute for the former writ of error. ■ There is no warrant in the Code,” as was said by my late colleague, Judge Woodruff, in Morgan agt. Bruce (1 Code, R. N. S. 364), “ for regarding a motion for a new trial as different, in any of its material incidents, from the like motion under the former system of practice.” The effect and operation of the Code, as to the manner of obtaining a review, were very fully examined by this court in the cases of Hastings agt. McKinley (3 Code Reporter, 10), and Morgan agt. Bruce, supra, and as a very lucid exposition was given by Judge Woodruff, in the first of these cases, of the system that prevailed before, with the view of pointing out the exact effect and nature of the enactments of the Code, it will be sufficient to refer to his opinion for an exposition of the views of this court. Since those decisions were rendered, the sections then reviewed have undergone no change, except by the amendment of the 348th section in 1852, providing that an appeal, upon the facts as well as upon the law, might be taken to the general term, where the trial is by the court or by referee.

The motion for a new trial was a comprehensive remedy, where, for misdirection or the improper admission or rejection of evidence, a bill of exceptions was tendered, or where a demurrer to evidence was put in, or a non-suit was granted, or a case made to set aside a verdict as contrary to evidence. The design of the motion in all such cases was, to enable a party to have a re-examination, without compelling him to resort to his writ of error, or anciently to his writ of attaint. It was a more simple, expeditious, and in some cases, where the court had the discretion to grant it or not, the only effectual remedy, and there is nothing in the Code showing any intention on the part of the legislature to restrict or abridge it, or to alter in effect the procedure by which this mode of review might be obtained. Formerly, the motion had to be made before the court in banc. The statute before referred to made an important change, by requiring, where a bill of exceptions was taken to a case made, demurrer to evidence put in, or motion made for a new trial, on the ground of newly-discovered evidence, that the matter should be first heard and decided by the circuit j udge, and that from his decision either party might bring the cause to a hearing before the supreme court, by appeal. The case of referees was not embraced in this provision, and motions, to set aside their reports upon the merits and for a rehearing before them, were always made before the supreme court in banc. (Graham agt. Milliman, 4 How. 435.) In this court and in the superior court, the power to grant new trials was exercised as incident to their common law jurisdiction, as distinct tribunals (Livingston's Mayor's Court Reports, 1802, pp. 12, 14, 17, 92 and 103); and if a new trial -was denied, the remedy was by writ of error to the supreme court from the j udgment.

The Code made provision, in 1848, for the manner of review in a new mode of trial—the trial before the court without a jury—by providing for an appeal from the judgment entered upon the direction of a single judge to the general term. In 1851, this mode of review was applied to judgments entered u.pon report of referees, and in 1852 the general term was authorized upon such appeal to review questions of fact as well as of law. Except in this class of cases, there is no very material or substantial change in the course of procedure. Things are called by different names, but the Code is, in this part of it, but little else than a codification, and a more general extension of the system that was previously in use.

The 348th section allows an appeal upon the law to be taken from a judgment entered upon the direction of a single judge, but this cannot be regarded as cutting off the right which previously existed, of moving before judgment for a new trial, for errors of law, and substituting in its place an appeal to the general term from the judgment. Such a motion, it has been shown, could, before the Code, be made before a circuit judge, unless he ordered otherwise, and such motions are now embraced, in nyr judgment, under the general head of motions for a new trial in section 265, which are to be heard at the special term, unless the judge at the trial direct them to be heard in the first instance at the general term. It is urged that this section relates only to eases where a verdict has been rendered, and does not embrace the case of the granting of a non-suit. There is nothing in the section to warrant any such construction. It embraces every case where a motion for a new trial might have been made before, or, if there be any exception, it is limited to the cases of a trial by the court without a jury, and a trial by referees.

It is urged that the decision of the court, in granting the non-suit, involves purely a question of law, and that the only remedy which the plaintiff has is an appeal from the judgment entered upon that decision to the general term. That the 348th section, in allowing an appeal from a judgment entered upon the direction of a single judge, provides for, and was designed to embrace such a case. The meaning, however, of this part of section 348 is very plain. Every judgment that is entered, except in cases where it is entered upon the report of referees, or upon confession without action, or upon the decision of general term, or where the clerk is authorized to enter it upon the failure to answer, is by the 278th section a judgment entered upon the direction of a single judge.

Upon every such judgment so entered, an appeal lies upon the law to the general term, which appeal, as before remarked, is a substitute for the former writ of error, which brought under review only questions of law. Judgment upon reports of referees are included in the same provisions, so that upon all the judgments here enumerated, an appeal was to the general term upon the law.

In tho language of the statute, it was from a judgment entered upon the direction of a single judge, or upon a report of referees “ in all cases,” thus giving the appellate tribunal (the general term) the same power of review in the case of judgment that was formerly obtained by means of a writ of error. This is entirely in consonance with the former system, and there is nothing, in any part of the section, indicating any intention on the part of the legislature to take away the right which previously existed, of moving for a new trial when a non-suit was granted, any more than any other case where a new trial might be moved for.

The provision in section 265, directing the manner in which the motion should be heard, and the provision that is made in section 349 for an appeal from the order .granting or refusing a new trial, both as respects the manner of hearing the motion, the mode of appeal, the giving of security, &c., is in every essential particular the same practice that was previously in use by the supreme court (General Rules, 9 Wendell, 449 ; Graham’s Practice, 2d edition, 640), and very plainly shows the design of the legislature. Changes have been created through the institution of special and general terms, particularly in this court and in the orphans’ court, and from the provisions in relation to trials by the court and referees, and the provision authorizing the judge in his discretion to hear a motion for a new trial upon his minutes, during the term or circuit at which the trial was had, but beyond this there is nothing affecting the motion for a new trial.

If the order denying a new trial will not accomplish the same purpose as if the proper order had been made on the trial, then I will hear the parties further upon an application to have the order made now which should have been made at the trial.  