(Supreme Court, General Term, First Department.Code Civil Proc. § 997, provides that where a party intends to move for a new trial of an issue he must make a case, and procure the same to be settled and signed by the judge before whom the action was tried, as prescribed by General Rule of Practice, 33, which provides that, “whenever it shall be necessary to make a case, ” it shall he made and served, “if the trial were before a jury, within ten days after the trial, or within ten days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of trial. ” Held, that a case where the trial is by jury must he made within 10 days after the trial, and,leave to make a case more than a year after trial and after exceptions had been overruled by the general term cannot be granted as a matter of right.
Appeal from special term.
Action by B. E. Martin, administrator of H. A. Martin, deceased, against S. 0. Platt and N. C. Platt was tried in November, 1887, and a judgment rendered for plaintiff. Thirty days, expiring December 15,1887, were granted defendants to make a case, which was made and afterwards settled and filed April 11, 1888. This case contained so much of the evidence and other proceedings upon the trial as were material to the questions to be raised.by the exceptions taken during the trial by the defendants making the case. The exceptions were heard at the May, 1888, general term, upon a motion for a new trial. The motion was denied, and an order was entered on the 28th .January, 1889, overruling the exceptions, and directing that the plaintiff have judgment upon the verdict, with costs, ( 4 N. Y. Supp. 859 .) On the 12th Febuary, 1889, a copy of the general term order was served upon the attorneys for the moving defendants, and on the 21st February, 1889, on an affidavit made by one of the attorneys for the defendants, Spencer 0. and Nathan 0. Platt, which stated that their time to serve a proposed case herein expired on the 23d February, 1889, on an ex parte application, an order was made that their time to serve their proposed case herein be extended 10 days. Plaintiff thereafter moved for an order vacating this ex parte order, and, after argument, the motion was denied. From the order denying this motion this appeal is taken.
Argued before Van Brunt, P. ,T., and Brady and Daniels, JJ.Edward S. Clinch, for appellant. W. G. Wilson, for respondents.
That a motion may be made for a new trial, on the ground that the verdict is against the weight of evidence, after the hearing of the exceptions at the general term, seems to he expressly sanctioned by section 1006 of the Code. Section 997 prescribes the practice in' the making and settling a case preparatory to a motion for a new trial. It provides that the moving party must make a case and procure the same to be settled as prescribed by the general rules of practice. Rule 32 of the general rules of practice provides that whenever it shall be necessary to make a case it shall be made and served, if the trial has been before a jury, within 10 days after the trial, or within 10 days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of trial, or within 10 days after notice of judgment, under section 1185 of the Code. Section 1185 refers only to cases where a verdict is taken subject to the opinion of the court, and has no bearing upon the question now before the court.
It would appear, therefore, that a case must be made, if the trial is by a