Doyle v. Jones — 8 Abb. Pr. 383

Majority

p. 383

DOYLE against JONES.

Supreme Court, First Department, First District ; General Term,

June, 1870.

Headnote

New Teial.

In an equity cause, after the justice who has tried the cause has directed the complaint to' be dismissed, he may, before the entry of judgment, direct a new trial.

Appeal from an order.

This action was brought by Margaret Doyle, against George A. Jones, for an accounting, &c. At the trial at a special term, the justice before whom the cause was heard granted a motion that the complaint be dismissed.

Afterwards, the parties having appeared before the court for the purpose of settling the form of judgment to be entered in the case, it was announced by the court that a new trial ought to be granted; and subsequently thereto, on motion of plaintiff’s attorney, the defendant’s attorney opposing, it was ordered that a new trial of the issues of fact be had, and that the action be restored to its place on the calendar.

From this order defendant appealed.

p. 384

Benjamin T. Kissam, for the defendant, appellant.

—I. The Code of Procedure contains authority for a judge holding court for jury trials," to entertain a motion on his minutes, and to grant a new trial (Code, § 264), "but does not authorize a judge holding a special term for the trial of equity cases, to do either (Jackson v. Fassitt, 12 Abb. Pr., 281 ; S. C., 33 Barb., 645 ).

II. The only mode of reviewing the decision of a judge upon a trial without a jury, is "by an appeal from the judgment to the general term (Watson v. Scriven, 7 How. Pr., 10 ; Wright v. Delafield, 11 Id., 465; Malloy v. Wood, 3 Abb. Pr., 369 ; Cronk v. Canfield, 3 1 Barb., 171 ; Burnett v. Phalon, 4 Bosw., 622 ; Matter of Livingston, 34 N. Y., 555 , 574).

the order of special term was affirmed, at the hearing, Mr. Justice Imgbaham holding that "before judgment entered the justice rendering a decision had the power, of his own voluntary motion, .to reverse it.