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, 87 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 N. Y. 551).

b. Perverse verdict.-(See Clarke v. Richards, 3 E. D. Smith, 89). e. 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).

1. 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). 0. 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).

7. 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).

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).

f. 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