Keck v. Werder — 37 N.Y. Super. Ct. 219

Majority

p. 219

JOHN KECK, et al., Plaintiffs, v. JOHN WERDER, Defendant.

Headnote

Rule 40 of supreme court rules, provides that after a trial of specific questions of fact, or any question of fact by a jury as a substitute for a feigned issue, that either party desiring to apply for a new trial, must move at special term upon a case or exceptions, or a case containing exceptions (except when the judge directs such motion to he made upon minutes at the same term or court at which the issues were tried).

In the case at bar, the defendant, without any special direction by the judge before whom the trial was held, made a motion for a new trial upon the minutes, at the same term, when the issues were tried. The motion was heard and denied by the judge, without, objection by the counsel for the plaintiffs.

The general term suggests that such proceedings were tantamount to a formal direction of the judge, and satisfy the requirement of the rule in that regard, but does not hold the same- formally. In this motion to dismiss an appeal from the order of the judge denying the motion for the new trial on the minutes, it appears; that an order has been made at special term, declaring the appeal

p. 220

to be abandoned. Although no notice of settlement of this order has been given to the appellant, still it is in full force. Therefore, the motion to dismiss the appeal must be granted.

Before Sedgwick, Yak Yorst and Speib, JJ.

Decided April 4, 1874.

Motion to dismiss an appeal.

Cfhauncey Shaffer, for the motion.

James M. Smith, in opposition.

is an action for a dissolution of a copartnership and an accounting. There were issues framed under rule 40, which were tried by a jury. The trial resulted in a verdict in favor of the plaintiff. Without a direction by the judge, before whom the trial was, a motion was made upon the minutes for a new trial, before the judge, at the same term when the issues were tried. One of the grounds on which this motion is made, is that under rule 4Ó, a motion for new trial cannot be made before the judge on the trial, unless he specifically directs that it shall be made. I hesitate to decide, that when a judge allows a motion for a new trial in such case to be made before him, on his minutes, without objection taken at> the time by the counsel, and the judge does not refuse to hear it, it is not tantamount to a direction of the judge that it shall be heard, and does not satisfy the requirement of the rule in that regard.

There is, however, another ground for the motion. The papers have not been printed and served upon the defendant. The appeal has been pending since August, 1873. This omission is accounted for in the appellant’s affidavit,, by the fact that his counsel has

p. 221

been ill for several months past. This is satisfactory so far as it goes, bat it appears that the appellant’s right to make a case has gone. There was an order made declaring the appeal to be abandoned, no doubt on the ground that the appellant had neglected to make a case. Although no notice of settlement of this order has been given to the appellant, still it is now in full force. .Therefore as the appeal has been declared to be abandoned, and the appellant’s light to make a case has passed, the present motion to dismiss the appeal must-be granted, with costs.

Van Vorst and Speir, JJ., concurred.