Thayer Manufacturing Jewelry Co. v. Steinau — 58 How. Pr. 315

Majority

p. 315

SUPREME COURT.

The Thayer Manufacturing Jewelry Company agt. Abraham Steinau.

Headnote

Motúm for new trial on the judge’s minutes—when and where to be made — Practice — Code of Giml Procedure, sections 997, 998, 999,1003.

A motion for a new trial, made upon the minutes of the judge presiding at the trial, can only be made before him at the same term in which the trial was had.

For the purposes of such motion, it is not necessary to make a case. The proceedings being fresh, the judge’s minutes are presumed to disclose the error, if. any exists.

When a motion for a new trial is made at special term, it should be founded upon a case made and settled according to the rules and practice of the court. In no other way can it be well determined by a judge, other than the one who tried the cause, what transpired at the trial and what questions distinctly arose.

p. 316

An omission to move fora new trial on the minutes during the trial term, under section 999 of the Code of Civil Procedure, cannot he cured hy a subsequent direction of the judge before whom the trial was had, after the end of the term, that such motion he made at the special term upon the minutes of the judge who presided at the trial.

Special Term, 1880.

Michael H. Ca/rdozo, for plaintiff.

Smdford H. Steele, for defendant.

The motion for a new trial made upon the minutes of the judge presiding at the trial can only be made before him, at the same term in which the trial was had (Code of Civil Procedure, sec. 999).

For the purposes of such motion it is not necessary to make a case. The proceedings being fresh the judge’s minutes are presumed to disclose the error, if any exists (sec. 998).

In the case under consideration a motion is made at the special term, upon the minutes of the judge who presided at the circuit in January last, for a new trial, upon the ground that the verdict and judgment are contrary to law.

FTo case has been made. I am persuaded that this practice is irregular and that the proceedings of the trial cannot, in such manner, be reviewed.

It is argued, in support of the practice, that the learned judge before whom the trial was had has so directed.

This direction of the justice was made after the end of the term during which the trial was had. An omission to move for a new trial on the minutes during the trial term, under section 999 cannot be cured by such subsequent direction. When a motion for a new trial is made at special term, it should be founded upon a case made and settled according to the rules and practice of the court. In no other way can it be well determined by a judge, other than the one who tried the cause, what transpired at the trial and what questions distinctly arose (Code, sec. 997).

p. 317

It is suggested by the moving party that section 1002 provides for a contingency upon which a motion for a new trial founded upon an allegation of error in a ruling upon the law,' made by the judge upon the trial, may be heard before another judge upon the direction of the trial judge. But there is nothing stated in section 1002 from which it can be inferred that a motion for a new trial can be brought on at special term, otherwise than upon a case, or that the trial judge can, by a direction made by him after the expiration of the trial term, order a motion for a new trial to be heard on his minutes before another judge, as that would be reaching by indirection what cannot be directly done.

Without, therefore, passing upon the question as to whether any error was committed on the trial, and without prejudice to the rights of the moving party to move at special term in the accustomed way upon a case, the present application is denied upon the preliminary objection taken.

As the question is new no costs of this motion are allowed.