550. This verdict was subsequently set aside by the trial justice, upon the ground that the recovery was excessive, and from the order vacating the verdict an appeal was taken to this court. In the meantime it was discovered that the plaintiff’s principal witness had committed perjury upon the trial, and he was thereupon indicted, convicted, and sentenced to prison for that crime. At this period in the history of the case, it naturally occurred to the defendant’s counsel that this last-mentioned fact furnished another and a very efficient reason why a new trial should be granted in the action; and fearing that this court might possibly restore the verdict, in whole or in part, he obtained an order at special term vacating an order theretofore granted, setting aside the verdict, and permitting the defendant to renew his motion upon the same grounds upon which it was originally made, and upon such further grounds as the facts might justify. This order was, in turn, modified by the order from which the present appeal is taken, and which, as thus modified, directs (1) that the order setting aside the order granting a new trial be vacated; (2) that the judgment entered upon the verdict be also vacated; and (3) that the order of the trial justice granting a new trial upon the ground of excessive damages be set aside, and the defendant permitted to make a motion for a new trial upon a case and exceptions, at special term, upon all the grounds enumerated in section 999 of the Code of Civil Procedure, and also, and at the same time, upon the ground of newly-discovered evidence. The moving papers upon which this last order was granted indicate quite clearly that the main object of this exceptional procedure was to bring on the motion for a new trial upon the ground of newly-discovered evidence at the same time as, and in connection with, the motion upon a case and exceptions, for reasons which are equally obvious. But the two motions are distinct and separate, and, while they might ordinarily be heard at the same time, they would necessarily have to be decided independently of each other. The practice, therefore, to which the defendant’s counsel has resorted, would not only fail of its object, but, if approved by this court, would lead to great confusion; and we must consequently discountenance it.
Having, however, reached this conclusion, we are met with this further embarrassment: The plaintiff has appealed from so much of the last order, only, as permits the defendant to make its motion for a new trial upon a case and exceptions at special term upon the grounds enumerated in section 999; his theory being that such a motion can be made only at the term at which the cause was tried. We do not so understand the rule. The section referred to specifies upon what grounds a motion for a new trial may be made which is based upon the minutes of the court, and requires that, when thus made, it must be at the trial term, and before the justice who tried the action. But at the same time it rests entirely within the discretion of the trial justice whether he will hear such a motion, or will direct it to be made more formally, and upon a case and exceptions. And, when the latter course is taken, we know of no reason why the motion should not be based upon any or all of the grounds enumerated in the section referred to. It would seem to follow, therefore, that the order ap