Martin v. Platt — 24 N.Y. St. Rep. 662

Majority

p. 662

Bertha E. Martin, as Administratrix, etc., App’lt, v. Spencer C. Platt and ano., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Practice—Case—Extension of time to make case—How granted.

When the time within which to make and serve a case has expired, leave extending the time can only he granted upon motion, and as a matter of favor and not as matter of right.

Appeal from order denying motion to vacate an order . granted ex parte, extending time to serve a case.

Edward S. Clinch, for app’lt; William G. Wilson, for resp’ts. j

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 be 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 njoving party must make a case, and procure the same to be settled, as prescribed by the general rules of practice.

p. 663

Buie 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 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 or within ten 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 jury within ten days after the trial, and that the extension until ten days notice of the decision of a motion for new trial, refers only to motions made at the trial, because it speaks of the contingency of such motions being not decided at the time of trial, which could not refer to motions for new trial, which were not made after the trial.

We think, therefore, that the time to make a case had. expired, and that leave to make a case could only be granted upon motion as a matter of favor, and not as matter of right.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Daniels, and Brady, JJ„ concur.