Rousso v. Vontrin

James, J. The two items objected to are claimed as allowable under subdivision five of section 307 of the Code. That subdivision of theséction gives to the successful party on appeal to the supreme court, except those allowed by subdivisions one, three, four and five of section 349, and by the second paragraph of section 244, $20 before argument and $40 for argument; and it allows the same sums before argument, and for argument on application for judgment on special verdict, or upon a verdict subject to the opinion of the court, or for a new trial on a case made, &c. The motion for a new trial in this case was premature. At the time it was made the trial of the action was not finished ; the final determination was suspended until the further order of the court, a suspension the court had authority to make (Code, § 264). Until the further order of the court no judgment could be entered, as it was undetermined who should have judgment. The hearing of the case reserved was part and parcel of the original trial, to which subdivision five section 307 has no application. The permission given defendant to make a case upon which to move for a new trial, was a proceeding entirely [10] independent of the cause as heid for further.consideration, and its exercise by the defendant was probably not contemplated until after an order for judgment had been directed in the action. On a case so reserved, the judge holding it, has no power to grant a new trial, as upon a case; his duty is either to direct a judgment for the plaintiff on the verdict, ' to dismiss the complaint, nonsuit the plaintiff, or direct judgment for the defendant. In ordinary practice a party does not move for a new trial on a case until defeated on the trial. Until then he cannot know that he desires a new trial. The court may possess the power to grant a party special leave to make a case, and move thereon for a new trial, before judgment ordered (see 41 N. Y., 228). But it would seem quite unnecessary to attempt to make the permission available before the trial is finished. Under the Code, the usual mode of reviewing the verdict of a jury upon the evidence, is by motion for a new trial on a case. It is not the mode for a reviewing questions of law. It is a proceeding distinct from an appeal, or from a motion for a new trial for error of law, although it may be pursued with either. A motion for a new trial for error of law, can only be raised by exceptions; this order is limited to a motion for a new trial on a case; and as there was nb verdict, rendered by the jury, upon their consideration of the evidence, it having been directed by the court, there was nothing before the court which could be reached by a motion for a new trial on a case ; if it was wrong to direct, the verdict, it was error of law, and could only be reached by exception. The court gave the defendant leave to make and have settled a case, and to move thereon for a new trial; whether or not it was the proper practice, the defendant availed himself of it, has had his day in court, without .objection, and been defeated. Being no part of the case reserved for consideration, but a separate and distinct proceeding, it [11] must be treated, as to costs, as though it were an ordinary motion for a new trial on a case. In this view the question presented is precisely that passed upon in Scudder agt. Gori (28 How., 155), by the general term of the superior court of New York, and in Stitt agt. Rowley and Selover agt. Wisner (37 How., 176 and 179), at a special term of this court. Motion denied.