Morris v. Brower

6 Sandf. 701

• Court: The Superior Court of New York City
• Decided: February 14, 1852
• Status: Published

Opinion

Sandfokd, J.,

(all the Justices concurring.) — By the amendments made to the code of procedure last summer, the justice Who tries the cause, may order an intended motion for a new trial, to be made in the first instance at the general term. (Code, §§ 265, 268.) Where there are exceptions to be argued, as well as a motion to set aside the verdict on the ground of the weight qí evidence, it is a great convenience to parties and a saving of time to the court, that the exceptions and motion be heard together.

We think that in every ease, where from the nature of the questions of law presented, or the amount in controversy, a decision at special term will not be likely to terminate the cause, the better practice is to order the case or bill of exceptions at once to the general term. The circumstance that there are facts to be examined as well as points of law, should make no difference. • Especially ought this practice to be pursued, where the points of law were ruled adversely at the trial. An argument of the bill of exceptions at special term is, in such a case, nothing more than an appeal from one judge to another in the same court, which should never be permitted where it can be avoided.

Suitable terms can always be imposed, on staying the proceedings in cases like this, so that the party who succeeded at the trial shall not be deprived by the delay of the fruits of his victory.

In this instance, there is no question on that point, and as the case falls within the rule we have suggested, the motion is granted.