Appeal from Special Term, New York County.
Action by Edith H. Ellis against George A. Hearn. From an order setting aside a judgment for plaintiff and granting a new trial, plaintiff appeals. Affirmed.
[116 N.Y.S. 978]
Charles S. Mackenzie (Walter F. Wood, of counsel), for appellant.
Philip S. Dean (David B. Ogden, of counsel), for respondent.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
[116 N.Y.S. 979]
This is an appeal from an order made at " Special Term of the Supreme Court *** held at chambers thereof in the county courthouse," setting aside a verdict and granting a new trial. The order was made by the trial judge. The action was brought for rent reserved by two leases of real estate and upon a contract made at the closing of title for the sale of said real estate, and the question in litigation was whether certain rents were paid in advance at the beginning of the quarter, or paid at the end of the quarter, for previous rent. The respondent had a witness under subpœ na whose testimony was material upon that point, and who, in fact, was the only witness that could testify to the facts with knowledge. He was taken sick. When the case was called for trial, a doctor's certificate was produced and a motion was made for an adjournment, which was denied, and the case set for 2 o'clock the same day. At 2 o'clock the motion for a postponement was again denied, and the trial proceeded and resulted in a direction of a verdict for the plaintiff. A motion was thereupon made for a new trial upon all the grounds stated in section 999 of the Code of Civil Procedure, and upon the further ground of surprise in the nonappearance of the witness Kieley. The motion was denied and an order was entered, but it is alleged in the moving affidavit that the trial justice thereupon stated that, if the facts in connection with the testimony of Kieley were subsequently brought to his attention in the form of a motion, he would consider the said motion. He thereupon directed both parties to the action to proceed to investigate the facts as to the exact amount of rent which had been previously paid on account of said leases, and to this end that the books of all parties be examined, and that motion papers stating the result be prepared and presented to him. The answering affidavit expressly states:
" The learned trial justice stated that if Kieley had paid his rent in advance as contended by the defendant that the fact could be easily ascertained from Kieley himself, and a motion might be made to the court for a retrial of the cause if it appeared that said Kieley had actually paid the rent of said premises in advance, and could prove the same. There was a suggestion made by the learned trial judge that the plaintiff or defendant should submit all or any of the books and papers which the plaintiff had showing how and when the payments of the rent by said Kieley had been made."
In accordance therewith, an investigation of the books was commenced; but, after allowing the defendant to look at the books covering a couple of years, the plaintiff refused to allow any further investigation. Whereupon an order to show cause was obtained from the justice who had presided at the trial, returnable before him, for a rehearing of the motion made at the close of said trial. Such rehearing was subsequently had, and thereupon the motion was granted, the verdict and judgment were set aside and a new trial was granted; the order stating:
" The said justice having allowed a reargument of said motion so made at the close of the said trial, *** and in furtherance of justice."
So far as the motion papers asked for and the order appealed from purported to grant, a reargument of the motion made at the close of the case to set aside the verdict and for a new trial upon the grounds [116 N.Y.S. 980] stated in section 999 of the Code of Civil Procedure, I do not think it can be sustained. That motion is based " upon exceptions, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law." It must be made upon the judge's minutes " at the same term." If an appeal is taken, " it must be upon a case prepared and settled in the usual manner." The motion was made at the same term, was denied, and an order entered, and the term expired. The rights of the several parties were then fixed. The right of appeal existed. That motion was based upon the record of the case as presented; and, if that record disclosed error, it was available, and a reversal could be obtained by the ordinary method and practice prescribed. If the record did not contain error, there was no ground for granting the motion in the first place, and no ground could thereafter be supplied to justify a reargument. We shall, therefore, treat the order as one granting a new trial upon the ground of surprise. This is one of the grounds provided for in section 998 of the Code of Civil Procedure, and it is expressly provided that upon such a motion it is not necessary to make a case. Section 1002 provides that:
" In a case not specified in the last three sections, a motion for a new trial must in the first instance be heard and decided at the Special Term."
Reading this section in connection with section 998, it follows that a motion for a new trial upon the ground of surprise must in the first instance be heard and decided at the Special Term.
The order to show cause having been granted by the judge who presided at the trial and made returnable before him at chambers, the parties appeared and submitted their papers and affidavits, and argument was had, without any suggestion of irregularity upon the ground that the proceeding was not before the Special Term ...