Rayne v. O'Connor — 145 N.Y.S. 980

Majority

p. 980

(84 Misc. Rep. 41)

RAYNE v. O’CONNOR.

(Supreme Court, Appellate Term, First Department.

February 11, 1914.)

Headnote

1. New Trial (§ 158*)—Motion—Right to Entertain. After expiration of the term, the court was without jurisdiction on re-argument to grant a motion for new trial on the minutes under Code Civ. Proe. § 999, authorizing the entertaining of such motion at the same term, though the motion was originally made and denied during the term.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 334; Dec. Dig. § 158.*]

2. New Trial (§ 155*)—Motion—Right to Entertain. After expiration of the term, the trial court is without jurisdiction to grant a motion for new trial on the ground of surprise and newly discovered evidence, except at Special Term on a case made and settled.

[Ed. Note.—For other cases, see New Trial, Cent Dig. § 315; Dec. Dig. § 155.*]

Appeal from City Court of New York, Trial Term.

Action by Madge Rayne, an infant, etc., against John O’Connor. From an order setting aside verdict and granting new trial, plaintiff appeals. Reversed.

Argued February term, 1914, before SEABURY, GUY, and DE-EANY, JJ.

Abraham Harris, of New York City (Hugo Wintner, of New York City, of counsel), for appellant.

Thomas E. Rush, of New York City (Effingham N. Dodge, of New York City, of counsel), for respondent.

This was an action for damages for negligence in which the plaintiff was awarded a verdict. On the rendition of the verdict the defendant made the customary motion to set the verdict aside and for a new trial, under section 999 of the Code of Civil Procedure. This motion was thereupon denied, and an order to that effect was made, and judgment entered. Subsequently, and after the term at which the motion was made had passed, the defendant obtained an order returnable before the same trial" justice, then sitting in another part of the Court, but not in Special Term, to show cause why—-

“the defendant’s motion to set aside the verdict and for a new trial of this action, made upon the minutes at Trial Term, part 7, on the 21st day of November, 1913, should not be reheard and reargued in furtherance of justice, and why said motion should not be granted upon the grounds stated at the ' time of said motion, and upon the further ground of manifest injustice to the defendant and of newly discovered evidence and surprise, and why the defendant should not have such other and further relief as. to the court may seem just and proper.”

On the return day plaintiff’s attorney appeared specially arid preliminarily objected to the hearing of the motion, and took exception to the jurisdiction and authority of the justice to grant the order to

p. 981

show cause on which the motion was based and to the jurisdiction and and authority of the judge or court to- hear and decide the motion, and objected further to the form and legal sufficiency of the proceeding and papers on the ground that there was no case made and settled, and to the sufficiency of the affidavits upon which the order to show cause was granted to bring up the question of the reargument of the motion made under section 999 of the Code. These objections were overruled, and the learned justice granted the order.

[L2] The assumption of jurisdiction we regard as irregular, and, as it was not acquiesced in by the plaintiff, it constitutes reversible error. It will be observed that this motion purports to be made on two general grounds: First, to set aside the verdict on the judge’s, minutes under section 999 of the Code; and, second, on the ground of surprise and newly discovered evidence. The order granted did not state specifically the grounds on which it was granted, but an accompanying opinion of the learned justice warrants the. assumption that the ground for granting it was newly discovered evidence only. If it is regarded as an order granted under section 999 of the Code, the learned judge was without authority to grant the motion on a reargument because the term at which the trial was had had expired. Ellis v. Hearn, 132 App. Div. 207 , 116 N. Y. Supp. 977 ; Polo v. D’Achille, 157 App. Div. 294 , at pages 296, 297, 142 N. Y. Supp. 506 . If it is "regarded as a motion on newly discovered evidence, it was likewise unauthorized, for such a motion could not be granted except on a case made and settled and at Special Term. Bridenbecker v. Bridenbecker, 75 App. Div. 6 , 77 N. Y. Supp. 802 ; Soloman v. Alexander, 128 App. Div. 441 , 112 N. Y. Supp. 779 .

The order appealed from should be reversed, with $10 costs and disbursements, and the verdict and judgment reinstated. All concur.

Cases cited

Polo v. D'Achille 157 App. Div. 294 N.Y. App. Div. 1913-05-29 p. 981
Bridenbecker v. Bridenbecker 75 App. Div. 6 N.Y. App. Div. 1902-07-08 at 77 p. 981