D. Smith, 18), or for work and labor (7 Wend. 178; 3 Cow. 393; 4 ib. 496), or goods sold and delivered (ib. 6; ib. 193), where no time is fixed for payment (b.), unless there be an express agreement to allow interest, or unless there are circumstances from which such agreement can be inferred (ib.; 3 ib. 496; 3 ib. 393; 5 b. 587; 6 Johns. 45). In actions on policies of insurance, where there is no doubt as to the amount of the loss, interest is allowed from the time of payment specified in the policy (23 Wend. 545; 1 Johns. 315; 2 Hill, 589; 1 ib. 261). In an action for debt on judgment, interest is recoverable from the time of its rendition (3 Wend. 496; 22 Wend. 157; 3 Hill, 426). In debt on bond, interest is not recoverable beyond the amount of the penalty, where the judgment has not been delayed on the part of the defendant (1 Johns. 343; 3 Caines' R. 48; Lyon v. Clarke, 8 N. Y. 148; and see Howard v. Farley, 19 Abb. 126). In covenant for a certain sum due for rent, and payable in money, interest is allowable (4 Johns. 183; and see Livingston v. Miller, 11 N. Y. 80). And so it is in an action for use and occupation (Ten Eyck v. Houghtaling, 12 How. 523). In an action on a premium note for non-payment of assessments (Hyatt v. Wait, 37 Barb. 30). In an action for attorney's costs (Adams v. Fort Plain B'k, 23 How. 45; Case v. Hotchkiss, 3 Keyes, 334; 37 How. 334; Graham v. Chrystal, 1 Abb. N. S. 121). In an action against a stockholder in manufacturing company (Burr v. Wilcox, 22 N. Y. 551). Interest against a del credere factor (Blakely v. Jacobson, 9 Bosw. 140), on note payable on demand (Herrick v. Woolverton, 42 Barb. 50).

a. In trespass for taking goods (8 Johns. 446), and in trover (ib. 2; ib. 280; 4 Cow. 53; 7 Wend. 354; 8 ib. 505; Schwerin v. McKie, 5 Rob. 405), interest may be allowed on the value of the chattels, from the time of the trespass or conversion, by way of damages. An allowance of interest in tort may be submitted to jury (Walrath v. Redfield, 18 N. Y. 458). As to allowing interest in addition to penalty of bond (Brainard v. Jones, 18 N. Y. 35). Interest on legacies (Bradley v. Faulkner, 12 N. Y. 472); on account stated (Case v. Hotchkiss, 1 Trans Abb. 285). As to interest in action against sheriff for an escape (Renick v. Orser, 4 Bosw. 384). Interest on an account usually commences from the time it is rendered (Beers v. Reynolds, 12 Barb. 288). Interest in action to recover bank deposits (Pelham v. Adams, 17 Barb. 384). Interest_allowed on recovery of money deposited on an illegal wager (Ruckman v. Pitcher, 20 N. Y. 9; 13 Barb. 556). An exception to the allowance of interest must be specific (McMahon v. N. Y. & Erie R. R. Co. 20 N. Y. 469). Where interest is improperly allowed, the verdict will not for that cause be set aside, but the plaintiff will be allowed to remit (3 Wend. 525). And where no objection is made on the trial to the allowance of interest, the objection cannot be made on a motion for a new trial (Sipperly v. Stewart, 50 Barb. 62).

b. Compound interest.—There is no authority for the recovery of compound interest unless there has been a promise in writing to pay it after interest has become due (Forman v. Forman, 17 How. 255; see Townsend V. Corning, 1 Barb. 627; Tylee v. Yates, 3 id. 223; Ackerman v. Emott, 4 id. 626; Howard v. Farley, 3 Rob. 308).

c. Double and treble damages.—At common law the damages are always single; but double and treble damages are, in some cases, given by statute. The jury may, in such cases, double and treble the damages themselves, and the court will intend that they have done so, unless the verdict be in terms for single damages (1 Cow. 175). The proper course, however, is for the jury to find single damages only, and the court then, on motion, will double or treble them as the case may require (1 Gallison, 26, 479; 25 Wend. 420). To entitle the plaintiff to double or treble damages, the declaration must distinctly refer to the statute (1 Cow. 175). A plaintiff may recover single damages although he claims double damages (Dubois v. Beaver, 25 N. Y. 123).

d. Severance of damages.-Where the defendants in trespass join in pleading, the jury, if they find them jointly guilty, cannot sever the damages (5 Burr, 2790; 6 T. R. 189; O'Shea v. Kirker, 8 Abb. 69; 4 Bosw. 120). So though they sever in pleading, or one suffer judgment by default, if there

be but one trespass, and both are found guilty of the whole trespass (6 Cow. 313). But they may find one of them guilty of the trespass at one time, and another at another (11 Co. 5 b.), or one of them guilty of one part of the trespass, and another of another (Cro. Car. 54), or some guilty of the whole trespass, and others guilty of a part only (Cro. El. 860); in all which cases the jury may assess several damages (1 Arch. Pr. 218). Also, where the defendants plead severally, if they be found guilty of the same act of trespass the jury cannot sever the damages (Cro. El. 680; 11 Co. 6 a, 7 a; 1 Arch. Pr. 219). Where the jury sever the damages by mistake, the plaintiff may cure the defect by taking judgment de melioribus damnis against one, and entering a nolle prosequi as to the other (6 T. R. 199; 1 Wils. 306; O'Shea v. Kirker, 8 Abb. 69; Turner v. McCarthy, 4 E. D. Smith, 247), or by entering a remittitur as to the lesser damages, he may have judgment for the greater damages against both (Cro. Car. 192; 1 Wils. 30; Arch. Pr. 219).

a. Where there are separate suits against several joint trespassers, and the plaintiff recovers, he can have but one satisfaction. But he may assess the damages separately, and then elect de melioribus damnis, and recover costs against each (8 Cow. 111; Beal v. Finch, 11 N. Y. 128).

b. Where as to one or more of several defendants, or as to one or more of several counts there is no answer, and the jury find a verdiet on the issue for the plaintiff, they must assess the damages for the whole, or against all the defendants (6 Cow. 599; 11 Co. 5; 2 Bos. & Pul. 163). But where some of several defendants suffer a default, and those who plead to issue are acquitted at the trial, the jury shall, in some instances, assess damages against those who have let judgment go by default, and in others not; the rule in such cases being, that where the plea of one of the defendants is such as shows that the plaintiff could have no cause of action against any of them (as payment of the plaintiff's demand), such plea shall operate or enure to the benefit of all; otherwise where the plea merely operates in discharge of the party pleading it (10 Pick. 291; 2 Ld. Raym. 1872; 2 Stra. 1108, 1222; 2 Chitt. R. 135).

c. Where there are several counts, the jury may give entire damages, or they may sever them, and give damages on each count or each class of counts (Arch. N. P. 233). If they give entire damages, and one count turns out to be bad, the defendant might move in arrest of judgment (2 Dougl. 730; 6 T. R. 691; 5 Johns. 435; 11 ib. 985), or bring error (Årch. N. P. 283; 9 Wend. 650), unless the error could be remedied by amendment (1 Dougl. 376; 1 Bos. & Pul. 329; 1 Arch. Pr. 219).

d. Contingent damages.-Where there is an issue of law remaining to be argued in the action, the jury, where they find for the plaintiff, usually assess contingent (i. e., conditional) damages, to become absolute in case the demurrer shall be decided for the plaintiff (2 Tidd's Pr. 778, 717). But where the issue in fact goes to the whole declaration, there is no necessity for an assessment of contingent damages (19 Wend. 630).

e. Altering verdict.-After the jury have pronounced their verdict, they may alter and correct it, before it is received and recorded. And the court may also send them out again to reconsider their verdict, if it appears to be a mistaken one before it is received (7 Johns. 32). See note to § 262; Wells v. Cox, 1 Daly, 515; Moss v. Priest, 19 Abb. 314, and in note to § 173, Amending verdict.

§ 262. On special finding with general verdict, former to control.

Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

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 (id.; 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. Devlin, 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