Ibbotson v. King

10 Jones & S. 207

• Court: The Superior Court of New York City
• Decided: March 5, 1877
• Status: Published

Opinion

By the Court.—Freedman, J.

Section 264 of the Code provides that a motion for a new trial, if heard ' upon the minutes, can only be heard at the same term or circuit at which the trial is had. The motion, therefore, was made too late. It should have been made on h case.

But even if it had been regularly made, either in - time on the minutes, or subsequently on a case, it might well, and indeed within the principles laid down in Rowe v. Stevens (N. Y. Superior Ct. 436), it should have been denied. It stated no ground upon which it was made, and, as matter of fact, no motion had been made for a nonsuit or the direction of a verdict, nor had any exception been taken to the charge of the court, under which all the issues appear to have been fully and fairly submitted to the jury.

Under these circumstances I do not feel called upon to examine the entire testimony with the view of testing the correctness of the finding of the jury.

The question was properly allowed. As the defendant claimed that the note had been usuriously discounted, it was competent and material for plaintiff to show, by way of rebuttal, what the real arrangement was; and as the whole arrangement had been "made by an agent of defendant’s firm, plaintiff had a right to show under what circumstances the money was handed over to, and accepted by such agent.

The judgment and order appealed from should be severally affirmed with costs.

Sanford, J., concurred.