Dusenbury v. Dusenbury

Freedman, J. Although the point decided in Tinson agt. Welch (51 N. Y., 244), in which case there was a verdict but no exception, has been obviated by the amendments made by section 999 of the Code of Civil Procedure, yet the general term of the supreme court, in Van Doren agt. Horton (19 Hun, 7), in construing that section, decided that an exception without a verdict is equally unavailing to. authorize the trial judge to entertain a motion for a new trial on his minutes, and that an exception to a mere non-suit is not enough. The kind of motion which, by the language of that section, the judge is empowered to entertain upon his minutes, is a motion to set aside the verdict and grant a new trial. The verdict may have been directed by the trial judge or it may represent the independent judgment of the jury upon the facts. But in the case of a dismissal of the complaint upon the plaintiff’s own showing, there is no verdict at all, though a jury may have been impanneled to try the issue. Whatever, therefore, my views may be as to the merits of the motion before me, the motion must be denied and the plaintiff left to seek his remedy either by a motion for a new trial at special term on a case to be made and settled, or by appeal to the general term, as he may be advised.