a The judge at the circuit cannot order a verdict for one party to be changed to a verdict in favor of the other party on the ground that the general verdict is inconsistent with special findings of the jury (U. S. Trust Co. v. Harris, 2 Bosw. 75).

b. When on a general verdict the judge may permit the verdict to be entered on some of the counts only (Baker v. Rand, 13 Barb. 153).

c. Proceedings of court at general term where there is a general and special verdict, and they are not consistent (U. S. Trust Co. v. Harris, 2 Bosw. 75).

d. If in the finding of a jury special matter follows or is followed by general matter, the verdict will be judged according to the special matter (Fraschieres v. Henriques, 6 Abb. N. S. 251).

§ 263. (Am'd 1851.) Jury to assess defendant's damages in certain cases.

When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly.

§ 264. (Am'd 1851, 1852.) Entry of the verdict. Motion for new trial on judge's minutes.

(1) Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. (2) If an exception be taken, it may be reduced to writing at the time, or entered in the judge's minutes, and afterwards settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not be sealed or signed, nor need a bill of exceptions be made. (3) If the exceptions be in the first instance stated in a case, and it be afterwards necessary to separate them, the separation may be made under the direction of the court, or a judge thereof. (4) The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a

new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is had. When such motion is heard and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had.

a. Subd. 1.—Judgment must be entered on the direction of the judge at the circuit (§ 264), except only in two instances. These are:-First: Where a party takes an exception on the trial, on which he desires to move for a new trial, the judge may order the exception to be heard, in the first instance, at the general term, and judgment to be there given; Second: Where upon the trial an uncontroverted state of facts is presented, involving only a question of law, in that case the judge may direct a verdict subject to the opinion of the court (Cobb v. Cornish, 16 N. Y. 602; 6 Abb. 129; 15 How. 407). The clerk may amend the entry made by him in his minutes to correct an error and to conform the entry to the decision (Smith v. Coe, 7 Rob. 477).

b. Subd. 3.—This implies it may become necessary to separate exceptions when inserted in a case (Gilchrist v. Stevenson, 7 How. 275); where the exceptions are in the first instance stated in a case containing matter not necessary to present the legal question arising upon them, the party desiring a review in the court of appeals should procure the exceptions to be separated from the case by or under the direction of the court below, or a justice thereof. If it does not appear from the return that the exceptions were in the first instance stated separately, or that they were separated from the case in which they were originally stated under the direction of the court below, or a judge thereof, the appeal to the court of appeals will be dismissed (Zabriskie v. Smith 11 N. Y. 480).

c. Subd. 4.—A motion for a new trial on the Judge's minutes can be only (1) upon exceptions; (2) for insufficient evidence; (3) for excessive damages (Moore v. Wood, 19 How. 409); (4) on the ground that the verdict is against the evidence (Algeo v. Duncan, 7 Trans. App. 106; see Tinson v. Welch, 7 Rob. 392).

d. The appeal here given is independent of the appeal from the judgment (Gannon v. Campbell, Gen. T. 2d. Dist).

§ 265. (Am'd 1851, 1852, 1857.) Motion for new trial on a case, &c. Verdict subject to the opinion of the court.

(1.) A motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken, the judge trying the cause may at the trial direct them to be heard in the first instance, at the general term, and the judgment in the mean time suspended; and in that case they must be there heard in the first instance, and judgment there given. (2.) And when upon a trial the case

presents only questions of law, the judge may direct a verdict subject to the opinion of the court at the general term; and in that case, the application for judgment must be made at the general term. (3.) Every judgment rendered upon a verdict taken, subject to the opinion of the court at a general term, may be reviewed by the court of appeals in the same manner, and with the like effect, as if exceptions had been duly taken at the proper time; provided it shall appear by the return, that questions of law were involved in the rendition of the judgment.

a. Motion for new trial.—A motion for a new trial is a proceeding entirely distinct from an appeal from the judgment. A party may pursue both at the same time (Benedict v. Caffee, 3 Duer, 669; see Parker v. Jarvis, 3 Keyes, 271). A motion for new trial on a case or exceptions is restricted to a trial by jury (Jackson v. Fassitt, 33 Barb. 645; 12 Abb. 281; Burnett v. Phalon, 4 Bosw. 662); and the case on which the motion is made should show that the trial was by jury (Cronk v. Canfield, 31 Barb 171). The motion must be made before the entry of judgment (Jackson v. Fassitt, 33 Barb. 645; 12 Abb. 281; 9 Abb. 137; Gurnee v. Smithson, 7 Bosw. 396; Anderson v. Dickie, 17 Abb. 83; 26 How. 199; Barnes v. Roberts, 5 Bosw. 73; see, however, contra, Tucker v. White, 27 How. 97); except where the judgment is allowed to be entered up as security (id.; Morgan v. Morris, 12 Abb. 164; Benedict v. Caffee, 3 Duer, 669); or by order of the court (Stillwell v. Staples, 4 Rob. 639). The court can convert an absolute judgment into one to stand merely as security (id.; see Tucker v. White, 28 How. 78). Where, after an appeal from the judgment, a case is made and the parties appear to argue the appeal upon the case, without objection, leave will be given to enter nunc pro tunc an order refusing a new trial (Gurney v. Sharp, 17 Abb. 410). Where there are no exceptions, or where the new trial is sought on a question of fact, the motion must be heard in the first instance at special term (il.; Lusk v. Smith, 8 Barb. 570). Where there are exceptions, and the new trial is sought on questions of law only, then, unless there is an order that the exceptions be heard in the first instance at general term, the motion must be at special term (Morgan v. Morris, 12 Abb. 164; Taylor v. Harlow, 11 How. 285; Watson v. Scriven, 7 id. 10; Potter v. Chadsey, 16 Abb. 146).

b. On a motion for new trial the party is confined to the objections raised on the trial (Waterville Manuf. Co. v. Brown, 9 How. 27; Smith v. Floyd, 18 Barb. 523; Staring v. Bowen, 6 Barb. 109; see, however, Keyes v. Derlin, 3 E. D. Smith, 518).

c. Where on the trial only questions of law arise which are ruled against the defendant, and the judge charges that plaintiff has a right to recover, without any exception taken, defendant cannot on motion for new trial insist that a question of fact should have been left to the jury (Hunter v. Asterhoudt, 11 Barb. 33).

d. On a motion for a new trial the refusal of the judge to permit an amendment of the pleadings at the trial cannot be reviewed (Hendricks v. Decker, 35 Barb. 298).

e. Amendment of case.-On the argument of a motion for a new trial on a case, the case may be amended to make it agree with the judge's minutes (Toplitz v. Raymond, 10 Abb. 60).

f. One defendant.—In an action for a tort there may be a new trial as to one defendant (Seeley v. Chittenden, 4 How. 265).

g. Serving order for new trial.-Where a new trial is granted on the application of the defendant, a copy of the order must be served before the defendant can move for a dismissal of the complaint for not proceeding to

trial. It is otherwise where the new trial is ordered on the application of the plaintiff (Robb v. Jewell, 6 How. 276).

a. Omitting to appeal.-On the denial of a motion for a new trial at special term, if no appeal be taken from the order, the moving party will be deemed to acquiesce in the propriety of such denial, and to have waived all grounds for a new trial, except such questions of law as under exceptions taken at the trial may be reviewed on an appeal from the judgment itself, and on appeal from the judgment, such exceptions will alone be considered (Rider V. Union India Rubber Co. 4 Bosw. 169)

b. Feigned issue.-Reviewing the trial of a feigned issue on a case (Lansing v. Russell, 13 Barb. 510; Snell v. Loucks, 12 Barb. 385).

c. New trial for verdict against evidence.-(See Dolsen v. Arnold, 10 How. 528; Stettiner v. Granite Ins. Co. 5 Duer, 594; Wheeler v. Calkins, 17 How. 451; Fry v. Bennett, 9 Abb. 45; Heritage v. Hall, 33 Barb. 347; Smith v. Tiffany, 36 Barb. 23; Housee v. Hammond, 39 Barb 96; Cothran v. Collins, 29 How. 155; Lewis v Blake, 10 Bosw. 198; Fleming v. Smith, 44 Barb. 554; Overing v. Russell, 28 How. 151; Sheldon v. Stryker, 27 How. 387). An order for a new trial on the ground that the verdict was against evidence is always on the condition of payment of costs of the first trial (East River Bank v. Hoyt, 22 How. 478; North v. Sergeant, 33 Barb. 350).

d. Newly discovered evidence.—(See The People v. Marks, 10 How. 261; Simmons v. Fay, 1 E. D. Smith, 107; Leary v. Roberts, 8 Abb 310; Tripler v. Ehehalt, 5 Rob. 609; Warner v. West Trans. Co. id. 490; Powell v. Jones, 42 Barb. 24; Sheldon v. Stryker, 42 Barb. 284; Parshall v. Klinck, 43 Barb. 203). A motion for a new trial on the ground of newly-discovered evidence cannot be heard in the first instance at general term. It must be made at special term. If denied, an appeal from the order denying it may be taken to the general term. Such an appeal will be heard at the same time as the appeal from the judgment (Clarke v. Ward, 4 Duer, 206). Newly-discovered evidence for which a new trial will be granted, must be such as is discovered since the trial (Oakley v. Sears, 7 Rob. 112; Dodge v. N. Y. & Wash. S. S. Co. 37 How. 524; 6 Abb N. S. 451; see Adams v. Bush, 2 Abb. N. S. 104; Meyer v. Fiegel, 38 How. 424).

e. On a motion for a new trial on the ground of newly-discovered evidence, the successful party is entitled to costs as on the argument of a case (Warner v. West. Trans. Co. 5 Rob. 491).

f. Excluding evidence.-(See Robinson v. Lyle, 10 Barb. 513; Snell v. Loucks, 12 Barb. 385).

g. Want of evidence.—(See Rathbone v. Stanton, 6 Barb. 141; Smith v. Tiffany, 36 Barb. 23; Moore v. Wood, 19 How. 405).

h. Misdirection.-(See Alston v. Jones, 17 Barb. 276; Green v. White, 37 N. Y. 405; Storey v. Brennan, 15 N. Y. 524; Gardner v. Clark, 17 Barb. 538). The motion must be on a case (Brush v. Kohn, 14 Abb. 51).

i. Improper evidence.—(See Hahn v. Van Doren, 1 E. D. Smith, 411; Anderson v. Busteed, 5 Duer, 485; Travis v. Barger, 24 Barb. 614: Weeks v. Lowere, 8 Barb. 530; Clarke v. Crandall, 3 Barb. 612; Dresser v. Ainsworth, 9 Barb. 619; Boyle v. Coleman, 13 Barb. 42; Underhill v. Harlem R. R. Co. 21 Barb. 489; Vallance v. King, 3 Barb. 548; Jaeger v. Kelly, 7 Rob. 586).

j. Surprise.—(See Beach v. Tooker, 10 How. 297; The People v. Marks, 10 How. 261: Taylor v. Harlow, 11 id. 285; De Leyer v. Michaels, 5 Abb. 203; Meakim v. Anderson, 11 Barb. 216; Mersereau v. Pearsall, 6 How. 293; Fellows v. Emperor, 13 Barb. 92; Peck v. Hiler, 30 Barb. 665; Oakley v. Sears, 7 Rob. 112; Tyler v. Hournbeck, 48 Barb. 197).

k. Charge to jury.-(See Gale v. Wells, 12 Barb. 85; Hunter v. Osterhoudt, 11 Barb. 33).

7. Excessive damages.-(See Scherpf v. Szadeczky, 1 Abb. 366; Knight v. Wilcox, 18 Barb. 212; Blum v. Higgins, 3 Abb. 104; Fry v. Bennett, 9 Abb. 45; Krom v. Schoonmaker, 3 Barb. 647; Clapp v. Hudson R. R. Co. 19 Barb. 461; Rogers v. Beard, 20 How 98). The court may affirm the judgment on condition that plaintiff reduce the judgment (Sears v. Conover, 3 Keyes, 113).

a. Inadequate damages.—(See Richards v. Sandford, 2 E. D. Smith, 349). A motion for a new trial on the ground of inadequate damages may be made on the judge's minutes (McDonald v. Walter, 40 Ñ. Y. 551).

b. Perverse verdict.-(See Clarke v. Richards, 3 E. D. Smith, 89).
c. Penal action.-(See East River Bank v. Hoyt, 22 How. 478).
d. Equity cases.- (See Clayton v. Yarrington, 33 Barb. 144).
New trial refused in the following cases:

e. Where the decision was right, but the reasons for it were not the true ones (Munroe v. Potter, 22 How. 49).

f. To impeach a witness (Beech v. Tooker, 10 How. 297; Meaken v. Anderson, 11 Barb. 216; Powell v. Jones, 42 Barb. 24).

g. Where the plaintiff could in no event recover more than nominal damages (Hopkins v Grinnell, 28 Barb. 533; Mc Conihe v. N. Y. and Erie R. R. Co. 20 N. Y. 495).

h. For an erroneous decision in favor of admitting evidence, but under which no evidence is shown to have been given (Vallance v. King, 3 Barb. 548).

i. Where evidence was erroneously rejected, but afterward admitted (Morgan v. Reid, 7 Abb. 215).

j. Where the party was not in fact prejudiced (id.; Cook v. Litchfield, 2 Bosw. 183; Hunt v. Fish, 4 Barb. 324).

k. For refusal to nonsuit, where the defect was afterward supplied (Barrick v. Austin, 21 Barb. 241; Schwerin v. McKie, 5 Rob. 405).

7. To allow a technical correction (Devendorf v. Wert, 42 Barb. 228) where party is not prejudiced (Woodruff v. McGrath, 32 N. Y. 255).

m. Because a question which ought to have been submitted to a jury, was passed upon by the court without objection (Clark v. Mayor of N. Y., 24 How. 333).

n. Evidence on new trial.-Evidence taken orally in an action in a county court, before a county judge who has gone out of office, cannot be ordered to stand as evidence on a new trial before his successor (Putnam v. Crombie, 34 Barb. 232). On reversing a judgment and ordering a new trial, the court cannot impose the condition that the testimony already taken be read on the new trial (Bruce v. Davenport, 5 Abb. N. S 185; 3 Keyes, 472). 6. Costs on motion for new trial.—(Warner v. West. Trans. Co. 5 Rob. 491; Jackett v. Judd, 18 How. 385).

p. Appeal from order denying new trial.-An appeal by a defendant from an order denying his motion for a new trial, does not per se stay the entry of judgment (Valton v. Nat. Loan Fund Soc. 19 How. 515). To stay the entry of judgment an order is necessary (id.); and if the appeal is to the court of appeals, the order must be obtained before the appeal is perfected (id.) Appeal from order denying a new trial, on judge's minutes, may be taken before or after judgment entered (Lane v. Bailey, 45 Barb. 119; 1 Abb. N. S. 407; contra, see Magnus v. Trischet, 2 Abb. N. S. 175). On motion for a new trial, the court at general term may examine the evidence at large, overrule the conclusions of fact at which the jury arrived, and order a new trial upon the whole case (Macy v. Wheeler, 18 Abb. 73). But the court of appeals, on appeal from their decision, must affirm the order, unless the conclusions of fact arrived at by the general term are wholly unsupported by the evidence (id.) Where there is an appeal from an order denying a new trial and an appeal from the judgment, both appeals should be argued together (Lane v. Bailey, supra).

4. On appeal from an order granting a new trial the judgment cannot be reversed unless the case negatives any inference that the court below granted a new trial because it came to a different conclusion upon the facts from that found on the original trial. The defeated party must go down to a new trial unless he can show by a statement of the facts considered as established at general term, that the judgment was founded upon an erroneous conclusion of law (Miller v. Schuyler, 20 N. Y. 522).