Martin v. Platt , 60 N.Y. Sup. Ct. 42 ( 1889 )

Van Brunt, P. J.

That a motion may be made for a new trial, on the ground that the verdict is against the weight of evidence, after the hearing of the exceptions at the general term, seems to he expressly sanctioned by section 1006 of the Code. Section 997 prescribes the practice in' the making and settling a case preparatory to a motion for a new trial. It provides that the moving party must make a case and procure the same to be settled as prescribed by the general rules of practice. Rule 32 of the general rules of practice provides that whenever it shall be necessary to make a case it shall be made and served, if the trial has been before a jury, within 10 days after the trial, or within 10 days after notice of the decision of a motion for a new trial, if such motion be made and be not decided at the time of trial, or within 10 days after notice of judgment, under section 1185 of the Code. Section 1185 refers only to cases where a verdict is taken subject to the opinion of the court, and has no bearing upon the question now before the court.

It would appear, therefore, that a case must be made, if the trial is by a .jury, within 10 days after the trial, and that the extension until 10 days’ notice of the decision of a motion for new trial refers only to motions made at the trial, because it speaks of the contingency of such motions being not decided at the time of trial, which could not refer to motions for new trial which were not made after the trial. We think, therefore, that the time to make a case had expired, and that leave to make a case could only be granted upon motion as a matter of favor and not as matter of right. The order appealed from should be reversed, with $10 costs and disbursements. All concur.