Brush v. Kohn , 14 Abb. Pr. 51 ( 1862 )

Monell, J.

So well satisfied am I that I have not the power on this motion to correct the verdict in this case, that I have not deemed it necessary to examine the question of the alleged error in the direction of the judge.

Under the practice before the Code, where a verdict was for the plaintiff which should have been for the defendant, the remedy of the defendant was by a motion in arrest of judgment. (Bellows a. Shannon, 2 Hill, 86.) He could not move for judgment non obstante veredicto. (Smith a. Smith, 4 Wend., 468.) The plaintiff only was allowed to make such a motion.

The motion in arrest of judgment was an enumerated and not a non-enumerated motion (Schermerhorn a. Schermerhorn, 5 Wend., 513), and hence could only be brought on on a case. (Belden a. Davies, 2 Hall, 433.) In Bank of Columbia a. Southerland (3 Cow., 336), to which I was referred by the defendant’s counsel, the motion was that judgment be entered for the defendant. There was a tender, money paid into court, and a verdict for the amount for the plaintiff. The court say: “ It is irregular to come in this form. Like all other questions arising on the trial, which relate to the direction of the j udge, or points reserved there, it should be brought hei’e on a ease made.” Time was given to make a case.

So far from the practice being changed in this respect by the Code, it is now expressly provided, that errors occurring on the trial can be reviewed only on a case or exceptions ; and, unless directed to be heard in the first instance at the general term, must be brought on at a special term, (Code, §§ 264, 265.) Such errors, reviewable only on a case, include a misdirection of the judge. (Alston a. Jones, 17 Barb., 276; Storey a. Brennan, 15 N. Y, 524.) And whether such misdirection be mere error in submitting questions to the jury upon which the law is too well settled to admit of doubt, or grave questions on which the law is unsettled, does not, in my judgment, change the practice or enlarge the power of the court.

The motion must be denied, but without costs.