Voisin v. Commercial Mut. Ins. Co.

• Decision Date: 07 October 1890
• Citation: 123 N.Y. 120,25 N.E. 325
• Parties: VOISIN v. COMMERCIAL MUT. INS. CO.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 120

25 N.E. 325

VOISIN

v.COMMERCIAL MUT. INS. CO.

Court of Appeals of New York.

Oct. 7, 1890.

Appeal from supreme court, general term, first department.

APPEAL-TIME OF TAKING.

Code Civil Proc. N. Y. 1005, provides that ‘the entry of final judgment, and the subsequent proceedings to collect or otherwise enforce it, are not stayed by an exception, the preparation and settlement of a case, or a motion for a new trial, unless an order for such stay is procured and served, and the entry, collection, or other enforcement of a judgment does not prejudice a subsequent motion for a new trial. When a new trial is granted, the court may direct and enforce restitution, as when a judgment is enforced upon appeal.’ Held, that where, after verdict for defendant, plaintiff moves for a new trial on the judge's minutes, which is denied, and thereupon defendant enters judgment, and gives notice thereof to plaintiff, plaintiff may, without appealing from the judgment, and after the time for such appeal has expired, still appeal to the general term from the order denying the motion for a new trial, by making and serving a case. Affirming 9 N. Y. Supp. 267.

Fredk. R. Coudert and Wm. Mitchell, for appellant.

H. W. Hardon, for respondent.

RUGER, C. J.

It is quite necessary, in the consideration of this appeal, to bear in mind the precise question raised by the case presented. After a trial by jury, and a verdict for the defendant, the plaintiff moved for a new trial upon the judge's minutes, which motion was denied. The defendant thereupon entered judgment, and gave notice of such entry to the plaintiff. No appeal from such judgment was taken, and the time for doing so expired before the appeal was taken from the order denying the motion for a new trial. After the denial of the motion, a case was regularly made, and served upon the defendant by the plaintiff, and an appeal from the order denying a new trial duly taken. The defendant, upon proof that judgment had been regularly entered, and no appeal taken therefrom, moved at general term to dismiss the appeal, which motion was denied. The appeal to this court is from the decision of the general term refusing to dismiss the appeal to that court.

The question presented is whether an appeal lies to the general term from a decision of the trial court denying a motion for a new trial made upon the judge's minutes in an action tried by a jury, except in connection with or previous to an appeal from the judgment. It is very probable, in the absence of express provisions of law allowing it, that such an appeal would not lie. A judgment is defined by the Code of Procedure (section 245, c. 438, Laws 1849) to be ‘the final determination of the rights of the parties to the action,’ and this definition conforms, not only to the character of a judgment as described in the Code of Civil Procedure, but also to that ascribed to it by legal authorities generally. 1 Bouv. Inst. § 676; Clason v. Shotwell, 12 Johns. 31. Previous to the act of 1832 (chapter 128) no motion for a new trial founded upon error alleged in the proceedings on the trial could be made after judgment had been entered in the action. Jackson v. Chace, 15 Johns. 353; Rapelye v. Prince, 4 Hill, 119; Sup. Ct. Rules, 1799; Tracey v. Altmyer, 46 N. Y. 598. It was considered that all such proceedings had merged in the judgment, which was the final determination of the issues, and could be reviewed only by an appeal from such judgment. The character which has thus been given to a judgment has been preserved from the earliest times to the present, and whatever limitations have been imposed upon its effect as a final determination of the action are based upon special statutes prescribing the conditions upon which they were founded. It is undoubtedly competent for the legislature to limit the effect of a judgment as respects the right and mode of granting relief to an aggrieved party from any of the proceedings in an action; and, where it has indicated a clear intention to protect the right of review from the effect of such judgment, it is the duty of the court to give effect to the legislative intention.

There is hardly any question of practice since the adoption of the Code which has given rise to more conflicting and irreconcilable decisions and views among judges than that relating to appeals from orders granting or denying motions for new trials, whether founded upon a case, exceptions, judge's minutes, or otherwise; and it would be a vain and unprofitable task to attempt to review and reconcile the numerous views expressed by the courts upon this subject. It is unquestionable that the rule governing such appeals now is contained in the provisions of the Code of Civil Procedure, and, whatever may be the mode prescribed thereby, it must control the determination of this appeal. A review of prior decisions might be useful for the purpose of interpretation, if the provisions of the Code of Civil Procedure were doubtful or ambiguous, but for any other purpose it would be unprofitable and misleading; and the present question must be determined by the existing statutes, which are in many respects materially different from the prior modes of practice. A general view of the condition of the practice previous to the adoption of the Code of Civil Procedure is all that is necessary for the purposes of this discussion. It is nowhere disputed but that prior to the act of 1832 the only mode of reviewing the proceedings occurring on a trial, with a view of obtaining a retrial of the action, was by an appeal from the judgment, and a consideration of such questions as were presented by the judgment roll. By chapter 128 of the act of 1832, and chapter 271 of the Laws of 1833, a great change was effected in the practice, and it was therein substantially provided that in actions tried before a jury, whenever a case was made, a bill of exceptions taken, demurrer to evidence interposed, or a motion for a new trial upon newly-discovered evidence made, and no stay of proceedings had been granted, the party in whose favor the verdict was rendered might perfect judgment, and issue execution; but it was nevertheless lawful for the defeated party to obtain a rehearing before the supreme court, and, in case he succeeded, it might set aside the verdict, and order restitution. Such applications were required to be heard, in the first instance, before the judge holding the circuit, and an appeal was authorized to be taken from his decision to the supreme court. Rules were adopted by the supreme court to carry out the provisions of the statute, (see Canal Bank v. Mayor, etc., 9 Wend. 246, and Sup. Ct. Rules 1837;) and the courts followed these rules until the acts of 1832 and 1833 were supposed to be superseded by the enactment of the Code of 1848 and 1849, and the amendments of 1851 and [123 N.Y. 125]1852. No doubt can be suggested but that under this statute the right to review in the supreme court the proceedings upon a trial at circuit by a motion for a new trial founded upon the judge's minutes, a case, or exceptions, was secured to the defeated party, notwithstanding the entry of judgment in the action. Tracey v. Altmyer, supra. The Code of 1848 and 1849 provided that, where a verdict was rendered, the court should make an order of the judgment to be entered, or that the case should be reserved for argument or further consideration. In case no reservation was made, the clerk was required to enter judgment immediately, in conformity with the verdict, which became final in four days after entry. If an exception was taken, it might be reduced to writing at the time, or entered in the judge's minutes, and afterwards settled as provided by the rules of court, and then stated in writing in a case, or separately, with so much of the evidence as might be material to the questions to be raised. The judge who tried the case could in his discretion entertain a motion to set aside a verdict, and grant a new trial upon exceptions or for insufficient evidence, or excessive damages, if made at the same term or circuit at which the trial was had. If such motion was heard and decided, and an appeal was taken from the decision, a case or exceptions was required to be settled in the usual form, upon which the argument on appeal was to be had. Wait, Code 1871, §§ 264, 265, 268. It was also expressly provided that the only mode of reviewing judgments or orders in a civil action should be that prescribed by title 11, c. 438, § 323, Laws 1849. Under this Code a great diversity of view prevailed as to whether a review of the questions of fact arising on a trial by jury could be had on appeal to the supreme court after judgment had been entered in the action. Some of the leading cases in the supreme court holding the affirmative of this proposition were: Pumpelly v. Village of Owego, 22 How. Pr. 385;Lane v. Bailey, 30 How. Pr. 76;Tucker v. White, 27 How. Pr. 97.

The most prominent cases on the other side are, probably, those of Jackson v. Fassitt, 21 How. Pr. 279;Soverhill v. Post, 22 How. Pr. 386;Anderson v. Dickie, 17 Abb. Pr. 83. The case of Tucker v. White was decided in 1864, Judge GROVER writing the opinion, vigorously controverting the correctness of the view, concedes that the weight of authority was then in favor of the proposition that the entry of an absolute judgment was fatal to an appeal from an order in such cases. It is quite significant that, among the numerous cases relating to this question in the supreme court, the act of 1832 is seldom, if ever, cited or referred to, showing, we think, that it was quite generally understood at that time that the act had been superseded by the Code. The mode of reviewing both questions of law and of fact arising upon trials by a jury, as well as before the court alone, or before a referee, under the Code of Procedure, is quite learnedly discussed by Judge HOGEBOOM in Morange v. Morris, 20 How. Pr. 259;...