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Green v. Roworth

53 N.Y. St. Rep. 129 Court N.Y.C.P. Decision date 1893-06-05 English

Delivered by Bischoff, J.

Contents

Majority

p. 129
Emma T. Green, Adm’rx, Pl’ff, v. Joseph G. Roworth et al., Def’ts.
(New York Common Pleas, General Term,
Filed June 5, 1893.)

Headnote

Mew tbial—Case—Code, § 1001.
A motion for a new trial on exceptions under § 1001 of the Code will
p. 130
not be entertained where it does not appear that the case and exceptions were settled and signed by the judge or referee by or before whom the action was tried.
Motion for a new trial of an issue of fact tried by the court without a jury. Action to set aside a conveyance of real and personal property on the ground that the same was procured by fraud.
John S. Davenport, for pi’if; Thomas Darlington, for def’ts.

Section 1001 of the Code of Civil Procedure authorizes a motion at general term, after interlocutory judgment has been entered, for a new trial of an issue of' fact tried by the court without a jury or by a referee, when exceptions taken to rulings on the trial are thus sought to be reviewed. Section 997 however requires that the motion be made upon a case and exceptions which must be settled and signed by the judge or referee by or before whom the action was tried as prescribed by the general rules of practice. See rule 32. Obviously the approval of the case to be presented to the general term is required to afford the judge or referee before whom the action was tried opportunity to direct the insertion of omitted evidence which appeared on the trial and may be necessary in support of the rulings which the general term is asked to review on the motion for a new trial. Brayton v. Sherman. 119 N. Y., 623 ; 28 St. Rep.. 854 ; Halpin v. Phenix Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788 .

We are unable to ascertain from the case submitted to us for the purposes of this motion that it was settled and signed as required by the Code, and the motion must for that reason be dismissed. Dwiqht v. R. R. Co., 5 Silvern Supreme. Ct., 596; 29 St. Rep., 250 .

Motion dismissed, with costs.

Pryor and Giegerich, JJ., concur.