Yaw v. Whitmore

The order appealed from should be reversed, and the matter sent back to the trial justice to entertain and determine the same on the merits, with $10 costs and disbursements. The action was brought to recover damages for personal injuries. On the last trial the court ordered a verdict for defendants. The appellate division set aside that verdict, and ordered a new trial. 61 N. Y. Supp. 731 . The defendants gave the usual stipulation, and appealed to the court of appeals. 60 N.

The only question before us is whether-the trial court had power to entertain the motion and determine it upon the merits. We cannot, in the absence of any “case” and exceptions or proof by affidavit as -to what occurred on the trial, assume to determine the motion upon the merits, because we are not informed in any legal way as to what occurred upon the trial. We are therefore merely to pass upon the question of power, raised by the trial "court. Section 194,, Code Civ. Proc., provides, among other things:

“Upon an appeal from an order granting a new trial on a case or exceptions, if the court of appeals determines that no error was committed in granting the new trial, it must render judgment absolute upon the right of tile-appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court.”

Section 1232 of the Code of Civil Procedure does not provide for an assessment of damages in the trial court, or for a review thereof,, but only an assessment by a writ of inquiry out of court. Section 1215 does not provide for an assessment of damages in cases arising under section 194, but only in cases of default in answering or demurring under section 1214. There seems to be no special provision made in the Code of Civil Procedure as to the practice on the assessment of damages in cases arising under section 194. It has been held that in cases of assessment of damages, both on default and under section 194, no review can be had in the court.of appeals, because no questions of law are involved, but only questions of fact, and as to the facts a review may be had in the appellate division. Bossout v. Railroad Co., 131 N. Y. 37 , 29 N. E. 753 ; Bassett v. French, 155 N. Y. 46 , 49 N. E. 325 . In Bossout v. Railroad Co. there was-quite an extended consideration of the practice in cases of assessment of damages under section 194 of the Code of Civil Procedure. The - question arose upon a motion to dismiss the appeal to the court of appeals. The assessment was in open court before a jury, and on the rendering of the verdict the defendant moved on the judge’s minutes for a new trial on the ground that the damages were excessive, that the verdict was unsupported by the evidence- and contrary to law, and upon all the exceptions taken on the trial.

“The result of our examination is to show that the proceeding for the assessment of damages in order to render the judgment absolute effectual, as provided for in the Code, is one which is not like the trial of an action at circuit, and the rules for reviewing the trial of an action do not prevail in regard to this proceeding. There is no provision for making a case and exceptions, or for a motion for a new trial, on the judge’s minutes. After the completion of the trial, a motion may be made to set aside the inquisition; but the motion will not be granted upon the same grounds as a new trial would be, for the mere admission of improper evidence. It is a motion addressed largely to the discretion of the court in which the proceeding takes place, and, when refused as not tending to the ends of justice, a judgment entered upon the inquisition does not become one which is reviewable by the court upon legal grounds. There would seem to be no doubt that under the well-established rule an appeal might be taken from the order of the special term refusing the motion to set aside the inquisition to the general term of the court, as the judicial discretion exercised by the court in granting or refusing the motion is not confined to the special term. But we do not see that any provision is made for an appeal to this court from the order or judgment of the general term in such a proceeding,” etc.

This language by the court of appeals should not be misunderstood. Several things appear therefrom, which should be noted: (i) The practice in assessment of damages under section 194 of the Code of Civil Procedure, and the review thereof, is not specifically provided for in the Code itself. (2) While there is no provision for an ordinary “case” and exceptions, or for the ordinary motion for a new trial upon the judge’s minutes, still a motion may be made, after the verdict is rendered, to set aside the inquisition or verdict. (3) The grounds of such motion are not the ordinary legal ones involved in motions made after the trial of the issues in a case, but such motion is addressed largely to the discretion of the court, to the end that substantial justice may be done. (4) An appeal may be taken from the order made on such motion to the appellate division, which has a supervision over the special term in the granting or denying of such motion. But no appeal lies to the court of appeals from its decision in the matter. (5) There is no provision of the Code, nor has the court of appeals indicated any opinion, as to when, or where, or upon what papers the motion should be made to set aside the verdict or inquisition of the jury; and the practice is, in this respect, qpen to the consideration and determination of this court. The trial judge, in refusing to entertain the motion, put his decision upon the ground that the same could not be heard at the trial term, but must be made at special term. ' In this the judge was clearly in error. There was a special term for motions being held with the trial term, and the motion could be heard therein, as

In this case there was no objection made that a notice of motion had not been served with a copy of the papers on which the motion was to be heard. We may assume, therefore, that the motion was properly made, without a formal notice. There was no objection that there were no papers served upon which the motion could be heard. It was offered to be made and heard on the minutes of the court. The minutes were kept by the stenographer, and were subject to correction by the court. The objection to considering the motion was not based upon the claim that the minutes were not or could not be made certain. We think the court had power to hear the motion, and that it was error to refuse to hear and determine it on the ground of want of power.

The order appealed from should therefore be reversed, and the matter sent back to be heard and determined at a special term to be held by the judge who presided on the assessment of damages; the hearing to be upon the pleadings, and the minutes of the court, evidenced by the stenographer’s minutes, proved or certified or made and settled in the form of a “case” and exceptions, as the counsel shall agree. Ten dollars costs and printing disbursements allowed to appellants, to be deducted from final recovery by the respondent in the action. All concur.