Magnus v. Trischet , 2 Abb. Pr. 175 ( 1866 )

Robertson, Ch. J.

Whether the defendant is entitled to have a statement in the case that it contained all the evidence, depends upon whether the object of the case is to move for a new trial upon the ground of a misdirection, which was not the subject of an exception, or of one which was. ¡No exception was taken to the charge of the court, that, “ If the jury found that the defendant in his letter had reference to the contract, the two pajDers taken together constituted a contract signed by both parties. If 'it was necessary to show that there was no evidence before the court, to which such charge was applicable, the proposed clause would perhaps be material. But it would be necessary also to show there was prima facie reason to believe that such charge misled the jury. It is said, however, that some exception was taken to some refusal to charge, wiiich is not before me. Upon the propriety of that exception, it must be assumed that all the evidence bearing upon it was in the case, under the first subdivision of section 264, of the Code of Procedure ; and the insertion of such a clause is unnecessary. As the case is not before me, I cannot decide whether such required clause was necessary to protect the defendant’s rights.

It was decided by this court, in the case of Gurney v. Smithson (7 Bosw., 398), that a motion for a new trial could not be made as a matter of right, after judgment entered, and there is nothing in this case to show any cause for letting the defendant in to make such motion.

The motion for a new trial must therefore be denied ; and as the defendant is reduced to his appeal on the exceptions, there is no necessity for inserting the words desired in the case. Both motions are therefore denied with costs.