Beach v. Skillman

Headnote

Motion for new trial on minutes in County Court.

Appeal from a judgment entered upon a verdict for plaintiff in tbe Monroe County Court, and from, an order denying a motion for a new trial on tbe minutes. >

Tbe case originated in a Justice’s Court, being appealed by defendant and be demanding a new trial. After verdict in tbe County Court tbe defendant moved for a new trial upon tbe minutes, wbicb was denied. A case witb exceptions was tben made, but no further motion for new trial.

Upon tbe case coming on at tbe General Term it was insisted that tbe appeal should be dismissed for tbe reason that no motion for a new trial upon tbe case and exceptions bad been made.

"With reference to this tbe court at General Term said“ Tbe respondent claims tbe appeal should be dismissed and tbe judgment affirmed, for tbe reason that no motion was made in tbe County Court for a new trial upon a case and exceptions ; that such motion on tbe minutes was not enough. In none of tbe cases cited by respondent {Dahash v. Flanders, 2 N. Y. S. C. [T. & C.], 445 ; Lester v. P. P. Co., id., 672; Mu/rrayv. Yamdeveer, 6 Hun, 302 ; TallmamY. Express Co., 6 id., 377 ; Quin v. Weed, 5 id., 350 ; Shear v. Yam Dyke, 4 N. Y. ~W. Dig., 348) does it appear that a motion for a new trial was made on tbe minutes, so that tbe operation of such a motion was not considered. In some of tbe cases it is said tbe bill of exceptions must be first considered by tbe County Court; in others that a motion for a new trial must be first made there. By section 366 of the Code (sub. 6) motions for new trials on tbe minutes are author

ized in cases like tbe present, and'the practice is assimilated to that in the Supreme Court. The appeal was from the order, as well as the judgment. The County Court has passed upon the exceptions, the same as if incorporated in a case. I think the appeal should not be dismissed.”