a. An order denying a motion for a new trial can only be reviewed on an appeal from it (Marquart v. La Farge, 5 Duer, 559; Ogden v. Coddington, 2 E. D. Smith, 317; Brown v. Richardson, 1 Bosw. 402).

b. The order upon affirmance at general term, after judgment, of an order denying a motion for a new trial on a case, should not include a direction that the judgment be affirmed (Miller v. Eagle Life Ins. Co., 3 E. D. Smith, 184).

c. When a party moving for a new trial is not entitled to it as a matter of right, he cannot on an appeal by him from an order granting it on terms, procure its reversal by reason of such terms. The terms are discretionary and not reviewable on appeal (Buryer v. White, 2 Bosw. 92).

d. Costs on appeal from order granting or refusing a new trial. The prevailing party on appeal to the general term from an order granting or refusing a new trial, is entitled to $15 before argument, and for argument $30 (Jackett v. Judd, 18 How. 385).

e. Evidence on motion for new trial.—On motion for a new trial on a case, the court will receive documentary evidence which could not have been controverted on the trial (Hart v. Coltrain, 24 Wend. 14). Thus where a record improperly attested was admitted on the trial, and on a motion for a new trial a properly attested record was produced, the motion for a new trial was denied (Markoe v. Aldrich, 1 Abb. 55; see 2 Sand. 718); where a nonsuit for defect of proof is improperly refused, and exception taken, if either party afterward supply the proof the want of which would have justified a nonsuit, the exception is of no avail, and a new trial will be refused (Schenectady Plank Road Co. v. Thatcher, 11 N. Y. 102; Mayor of N. Y. v. Mason, 1 Abb. 344; Breidert v. Vincent, 1 E. D. Smith, 542; Morgan v. Reid, 7 Abb. 215; Robert v. Good, 2 Trans. App. 103).

ƒ. Court of appeals.—No appeal lies to the court of appeals from an order denying a motion for a new trial for newly discovered evidence (Lawrence v. Ely, 38 N. Y. 42).

g. Exceptions heard in first instances at general term.— An exception to a nonsuit may be ordered to be heard in the first instance at general term (Lake v. Artisan's B'k, 3 Abb. N. S. 209; 3 Keyes, 276; see Ely v. McKnight, 30 How. 97). Taking evidence on both sides upon a particular question, does not necessarily amount to conflicting testimony, the case may still present questions of law only, so as to warrant an order that the exceptions be heard in the first instance at general term (Huntington v. Claflin, 6 Trans. App. 169; see 4 Sand. 701; 14 How. 59).

h. Where an exception is ordered to be heard at general term, and the judgment in the mean time suspended, judgment can only be given at the general term (Devoe v. Hackley, 3 Rob. 679).

i. On the hearing of exceptions in the first instance at general term, no question of fact can be discussed, nor the point that the decision of the jury is against the weight of evidence (Hotchkins v. Hodge, 38 Barb. 118; Clark v. Ward, 4 Duer, 206; Seeley v. Chittenden, 10 Barb. 303).

j. Where on exceptions the court cannot clearly see that injustice has not been done by the application of an improper rule of damages, they will order a new trial (Rogers v. Beard, 20 How. 98). But a new trial will not be granted merely because the court would have come to a different conclusion on the evidence (Mackey v. N. Y. Central R. R. Co., 27 Barb. 529).

k. Verdict subject to the opinion of the court.-There can be no decision subject to the opinion of the court at general term on a trial by the court without a jury (Malloy v. Wood, 3 Abb. 369). And a verdict subject to the opinion of the court is only proper where the facts are undisputed (Porter v. Schepeler, 2 Bosw. 188; Cobb v. Cornish, 16 N. Y. 602; 6 Abb. 129; 15 How. 407; Gilbert v. Beach, 16 N. Y. 608; Chambers v. Grantzon, 7 Bosw. 414; Brown v. Orser, 2 Bosw. 365; Bell v. Shibley, 33 Barb. 610; Havemeyer v. Cunningham, 8 Abb. 1; Beebe v. Ayres, 28 Barb. 283; Whittaker v. Merrill, id. 526). Thus where there is a question as to the credibility of witnesses, and there is conflicting testimony which ought to be submitted to a jury, and

where there are exceptions in the case in regard to the admissibility of testimony, it is improper for the judge at the circuit to take the case from the jury and direct a verdict for the plaintiff subject to the opinion of the court at general term (Sackett v. Spencer, 29 Barb. 180; Purchase v. Matteson, 25 N. Y. 211; 15 Abb. 402; Dickerson v. Wason, 48 Barb. 412; Purchase v. N. Y. Exchange B'k, 10 Bosw. 564). And where upon the trial, evidence was offered for the plaintiff, which, on the defendant's objection, was excluded, and the plaintiff excepted, the testimony being closed, the court directed the jury to assess the value of the property in question. The defendant asked for certain rulings as to the effect of the evidence upon the question of value. The court refused to rule as required, and the defendant excepted. The jury rendered a verdict for the plaintiff. Thereupon the court ordered that the motion for judgment should be heard in the first instance at general term. At general term judgment was ordered for the defendant; the court of appeals reversed the judgment and ordered a new trial, and held that it was not a case in which the judge at the trial could send it direct to the general term (Cobb v. Cornish, 16 N. Y. 602; 6 Abb. 129; 15 How. 407; and see Bangs v. Palmer, 16 How. 542). And where, upon the trial, there was a disputed question of fact, the judge submitted certain questions to the jury, who answered them specially, and found a verdict for the plaintiff, subject to the opinion of the court, the general term ordered a dismissal of the complaint. The court of appeals reversed that judgment, and ordered a new trial (Gilbert v. Beach, 16 N. Y. 606; see Clark v. McConnin, 6 Duer, 309; Beebe v Ayres, 28 Barb. 276; Sackett v. Spencer, 29 Barb. 180; Whittaker v. Merrill, 28 Barb. 526). Where the judge on the trial ordered judgment for the plaintiff for $750, subject to the opinion of the general term, and, in case the general term sustained the plaintiff's right of action, then there should be a reference to ascertain plaintiff's damages, the judgment was held to be irregular (Buchanan v. Cheeseborough, 5 Duer, 238). These decisions were not made on the ground that the general term could not render a judgment at variance with the verdict, but because the cases were not such as allowed a verdict to be taken subject to the opinion of the court at general term. It seems quite immaterial for which party a verdict subject to the general term is taken (Cobb v. Cornish, 16 N. Y. 604). Such a verdict suspends the entry of judgment until the decision at the general term (Gilbert v. Beach, 16 N. Y. 608; Roosa v. Snyder, 12 How. 286). The party in whose favor the verdict is taken must make a case containing the pleadings and proceedings at the trial, and on such case move at general term for judgment (Cobb v. Cornish, supra). If the party in whose favor the verdict is taken fails to make a case according to the rules and practice of the court the opposite party may give notice of motion at the next term for judgment, and if no sufficient excuse is then shown for not making the case, the court will order judgment to be entered for the opposite party (Jackson v. Case, 12 Johns. 431). Where a verdict subject to the opinion of the court is improperly taken a new trial is to be ordered (Chambers v. Grantzon, 7 Bosw. 414; but the court may by consent hear and determine the motion (Porter v. Schepeler, 2 Bosw. 188; Whittaker v. Merrill, 28 Barb. 526; see however Purchase v. Matteson, 25 N. Y. 211; 15 Abb. 402); in what case they will disregard the objection that a particular and material fact is unproved, when such objection was not taken at the trial, and some evidence in support of it was given, and the whole proceedings tend to show that it was understood at the trial that no such objection was relied on (Porter v. Lobach, 2 Bosw. 188); and on the application for judgment the general term will not entertain objections which, if suggested at the trial, might have been obviated (McKensie v. Farrell, 4 Bosw. 193); where a verdict is properly taken, subject to the opinion of the court at general term, judgment may be rendered at general term, either for a dismissal of the complaint or for the plaintiff (Chittenden v. Empire Stone Dressing Co. 3 Abb. 71; 6 Duer, 30; Kelly v. Upton, 12 How. 140). When a verdict is taken subject to the opinion of the court, the court will draw, in support of the verdict, every inference from the evidence which a jury would be justified in

drawing (Williams v. Ins. Co. of N. A. 1 Hilton, 345). The question is, who is entitled to judgment upon the facts established, and the verdict may be supported upon any theory consistent with the facts, though not suggested by the pleadings (Oneida Bank v. Ontario Bank, 21 N. Y. 490).

a. If on a verdict subject to the opinion of the court at general term, a new trial is granted, on the suggestion that further evidence can be supplied, the court will impose on the party desiring the new trial the payment of the costs of the trial, and all subsequent proceedings, as a condition of such new trial (Kelly v. Upton, 12 How. 140).

b. Where the facts have been specially found by the jury, and a verdict directed subject to the opinion of the court at general term, a motion cannot be entertained at general term to set aside the finding of the jury as against evidence (Purvis v. Coleman, 1 Bosw. 321). Such a motion must be made, in the first instance, at the special term, and it is only upon an appeal from the order there that such a motion can be considered at general term (id.)

See notes to §§ 264, 268.

CHAPTER IV.

Trial by the Court.

SECTION 266. Trial by jury, how waived.

267. On trial by the court, judgment how given.

268. Exceptions, how and when taken. Judgment at general term.

269. Proceedings upon judgment on issue of law.

§ 266. (Am'd 1849.) Trial by jury, how waived.

Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following:

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes.

c. A trial by jury can be waived only in the manner prescribed by law (Fire Department v. Harrison, 2 Hilton, 455; Lewis v. Varnum, 12 Abb. 305), but entering upon the trial of an action by the court without objection, or objecting by way of motion to dismiss the complaint only, is a waiver of a jury trial (Greason v. Keteltas, 17 N. Y. 498; M'Keon v. See, 4 Rob. 450; Moffat v. Mount, 17 Abb. 4; but see Bradley v. Aldrich, 40 N. Y. 511). The mere failure of one of the parties to appear on the trial is not a waiver (Hendricks v. Carpenter, 4 Rob. 665). See Rule 28.

§ 267. (Am'd 1860, 1865, 1870.) On trial by the court, judgment how to be given.

(1) Upon the trial of a question of fact by the court, its deci

sion shall be given in writing, and shall contain a statement of the facts found and the conclusions of law separately; and, upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. (2) Judgment upon the decision shall be entered accordingly four days thereafter. (3) If, upon motion by either party, to a general or special term of the court, it shall be made to appear that the decision is unreasonably delayed, the court may make an order absolute for a new trial, or may order a new trial, unless the decision shall be filed by a time to be specified in the order. The costs of the former trial shall abide the event of the new trial.

a. Nonsuit.—A judge before whom an action at law is tried without a jury, acts in the double capacity of court and jury, and when instead of rendering a judgment in express terms for the defendant, he orders that the complaint be dismissed, it is to be presumed he thereby nonsuits the plaintiff (Coit v. Bland, 12 Abb. 463).

b. One judge.-One judge cannot try a portion of an action and another judge finally determine it (Chamberlain v. Dempsey, 15 Abb. 1). Thus where an action has been tried before a judge without a jury, and a judgment rendered for plaintiff, with a direction for a reference to compute the amount of the recovery, no other judge than the one who tried the cause has power, on the coming in of the report of the referee, to render final judgment in the action (b.) And a judge having heard the cause must decide it; he cannot after hearing, order it to be tried by a jury (O'Brien v. Bowes, 4 Bosw. 663).

c. Determine controversy.-On a trial by the court, it may and should decide the whole case (1 Bosw. 281; 13 How. 246). Thus where the complaint prays a specific performance of a contract to convey lands or for damages, but shows the defendant incapable of conveying, and the parties go to trial, the court is not to dismiss the complaint, but to retain the case to award damages (Barlow v. Scott, 24 N. Y. 40); and so where the action is to reform a policy of insurance and to recover for a loss covered by said policy (N. Y. Ice Co. v. N. Western Ins. Co. 23 N. Y. 357).

d. Filing decision.-The requirement that the decision should be filed within 20 days, is merely directory (Burger v. Baker, 4 Abb. 11; The People v. Dodge, 5 How. 47; Stewart v. Slater, 6 Abb. 84; Lewis v. Jones, 13 Abb. 427; O'Brien v. Bowes, 4 Bosw. 663).

e. Findings of fact.-Unless there is a finding of facts by the justice who tried the cause, incorporated in the case, the general term will not hear an appeal from the judgment, and will dismiss the appeal for the omission of such a finding, unless before the cause is submitted the parties consent that it be sent back for correction (Matthews v. Mayor of N. Y. 14 Abb. 214); and in the court of appeal there can be no review unless there is a statement of facts (Bridger v. Weeks, 30 N. Y. 328; Leland v. Cameron, 31 N. Y. 115; Doty v. Carolus, 31 N. Y. 547; Essex B'k v. Russel, 29 N. Y. 673); and in the court of appeals it is held that where a judgment after a trial by the court comes up for review without any finding of facts nothing can be presumed against the correctness of the decision, the presumption must be in favor of a decision (Viele v. Troy & Boston R. R. Co. 20 N. Y. 184).

a. The findings of fact are deemed conclusive, unless they are without evidence in support of them or against an overwhelming weight of evidence (Loeschigk v. Peck, 3 Rob. 700; Foote v. Roberts, 7 Rob. 17; Ritter v. Cushman, id. 294; Hatch v. Fogerty, id. 488). If the decision does not dispose of all the issues a new trial must be ordered (Loeschigk v. Addison, 3 Rob. 331). It is not error for the court to omit to state in its decision facts material to the issue, the presumption is that its findings on such facts are favorable to the successful party, everything necessary to sustain the judgment will be intended (Manley v. Ins. Co. of N. A. 1 Lans. 20; McKeon v. Lee, 4 Rob. 449; Smith v. Coe, 29 N. Y. 666; Ashley v. Marshall, id. 494), when there is nothing in the case opposed to the justice of such intendment (Heroy v. Kerr, 8 Bosw. 194). But if the judge fail to specify the relief granted or the determination of the action, it is an irregularity which may be taken advantage of even on appeal (Chamberlain v. Dempsey, 14 Abb. 241). For the statement of facts must support the conclusions of law, or the judgment will be reversed. No fact can be implied from the conclusions of law (Tomlinson v. Mayor of N. Y. 23 How. 452).

b. If the judge omit to find any question of fact involved, the remedy of the party aggrieved is not an exception but a motion before the judge to have the finding corrected; the omission cannot be supplied or considered on an appeal from the judgment (Sharp v. Wright, 35 Barb. 236; The People v. Albright, 14 Abb. 305; Niles v. Price, 23 How. 473; Smith v. Coe, 29 N. Y. 666; Ashley v. Marshall, id. 494). If the judge refuse to correct the findings the only redress is an appeal from the settlement (McKeon v. See, 4 Rob. 449; Hatch v. Fogerty, 7 Rob. 488; Manley v. Ins. Co. of N. A. 1 Lans. 20).

c. Judgment.-Upon the trial of an issue of fact by the court, the prevailing party on filing the decision of the judge, may enter his judgment immediately (Lynde v. Cowenhoven, 4 How. 327; Renouil v. Harris, 2 Sand. 641). The judge's decision is the only authority for entering judgment (Chamberlain v. Dempsey, 14 Abb. 241; Loeschigk v. Addison, 3 Rob. 331). But on a finding in favor of a plaintiff subject to an accounting, no judgment can be entered until the accounting has been had (McMahon v.Allen, 27 Barb. 335). In a judgment it is sufficient to refer to the decision without reciting its particulars, and recitals of particulars in which the judgment is erroneous may be struck out on appeal from the judgment where the error may be cured by reducing the amount of the recovery (Bunten v. Orient Mut. Ins. Co. 8 Bosw. 448).

d. Review. The only mode of obtaining a review of any decision on such a trial, whether during its progress or at its close, is by an appeal under section 348 (Mallory v. Wood, 14 How. 67; 3 Abb. 371; Wright v. Delafield, 11 How. 465; Watson v. Scriven, 7 How. 9; Hunt v. Bloomer, 13 N. Y. 341).

§ 268. (Am'd 1852, 1860, 1867, 1869.) taken. Judgment at general term.

Exceptions, how and when

(1) For the purposes of an appeal, either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury. Provided, however, that where the decision filed under section two hundred and sixty-seven does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto, and make a case or exceptions as above provided in case of an appeal.