Staacke v. Preble , 6 N.Y. St. Rep. 763 ( 1887 )

Barnard, P. J. :

The plaintiff was nonsuited upon the trial before Justice Bartlett and a jury, and an exception was taken by the plaintiff’s attorney to the decision of the judge dismissing the complaint. Upon the motion of the plaintiff’s attorney the exception was directed to be heard in the first instance at the General Term, and, in the meantime, the judgment was ordered to be suspended. By section 1000 (Code Civil Pro.) it is provided that the exception “must be heard upon a motion for a new trial, which must be decided by the General Term.” By the same section it is provided that the motion for a new trial is “ deemed to have been made when the order was granted,” and either party may notice it for hearing at the General Term upon the exception. There was then a motion for a new trial pending in the General Term, which could be brought to a hearing by either party. The plaintiff was bound to prepare and serve the proper papers for the argument. This he has failed to do. The respondent has noticed the motion for the hearing deemed to be made at the circuit. He is entitled to a denial of the motion for a new trial as well by default of the moving party as upon the argument. Unless the order sending the exception to the General Term be revoked, the same must be decided by the General Term. If the party fails to appear at the General Term, the case may be decided against him by default, as in other motions.

Motion for a new triai denied and exception overruled, and judgment for defendant upon the decision at circuit, with costs.

Dykman and Pratt, JJ., concurred.

Motion for new trial on exception denied, exceptions overruled, and judgment of circuit affirmed, with costs.