p. 701Morris v. Brower and others.Headnote
Where from the nature of the questions of law involved, or the amount in issue, a decision of the case or bill of exceptions at the special term will not be likely to terminate the cause, the same will be ordered to be heard in the first instance at the general term, on suitable terms for the security of the party who obtained the verdict.Especially will this be ordered, where there are exceptions on points ruled adversely at the trial.
The circumstance that the party moves to set aside the verdict as against evidence, as well as on exceptions, will not prevent the order from being made. Motions and proceedings, by way of appeal from one judge to another in the same court, should always be avoided, if possible.
This cause was tried in. December, and a verdict rendered for tbe plaintiff against all the defendants. They prepared a case with leave to turn it into a bill of exceptions, intending to move for a new trial both for misdirection of the judge and because the verdict was against the weight of evidence. They now apply to the'judge who tried the cause, for an order that the case and bill of exceptions be first brought to a hearing at the general term, and for a stay of proceedings in the mean time.
8. B. H. Judah for the defendants.
J. Anthon, for the plaintiff.
(all the Justices concurring.) — By the amendments made to the code of procedure last summer, the justice Who tries the cause, may order an intended motion for a new trial, to be made in the first instance at the general term. (Code, §§ 265, 268.) Where there are exceptions to be argued, as well as a motion to set aside the verdict on the ground of the weight qí evidence, it is a great convenience to parties and a saving of time to the court, that the exceptions and motion be heard together.
p. 702We think that in every ease, where from the nature of the questions of law presented, or the amount in controversy, a decision at special term will not be likely to terminate the cause, the better practice is to order the case or bill of exceptions at once to the general term. The circumstance that there are facts to be examined as well as points of law, should make no difference. • Especially ought this practice to be pursued, where the points of law were ruled adversely at the trial. An argument of the bill of exceptions at special term is, in such a case, nothing more than an appeal from one judge to another in the same court, which should never be permitted where it can be avoided.
Suitable terms can always be imposed, on staying the proceedings in cases like this, so that the party who succeeded at the trial shall not be deprived by the delay of the fruits of his victory.
In this instance, there is no question on that point, and as the case falls within the rule we have suggested, the motion is granted.