n. Evidence on new trial.-On reversing a judgment for error, and ordering a new trial, the court cannot impose the condition that testimony already taken shall be read in evidence on such new trial. Bruce v. Davenport, 5 Abb. N. S. 185; S. C. 3 Keyes, 472; 3 Trans. App. 82. Evidence taken orally in an action in a county court, before a county judge who has gone out of office, cannot be ordered to stand as evidence on a new trial before his successor. Putnam v. Crombie, 34 Barb. 232. o. Costs on motion for a new trial. A motion for a new trial on the ground of newly discovered evidence, is so far an enumerated motion as to entitle the successful party, upon its determination, to costs, as on the argument of a case. Warner v. Western Transportation Co. 5 Rob. 491. For costs ordinarily on a motion for a new trial on a case or exceptious at special term, see Jackett v. Judd, 18 How. 385; opposed, see Malan v. Simpson, 20 id. 488; S. C. 12 Abb. 225, sub nom. Malam v. Simpson. MOTION FOR NEW TRIAL. e. Argued together.-Where there is an appeal from a judgment and likewise an appeal from an order denying a motion for a new trial on the judge's minutes, both appeals should be argued on the appeal from the judgment. Lane v. Bailey, 30 How. 76; S. C. 45 Barb. 119; 1 Abb. N. S. 407. APPEAL FROM ORDER DENYING a. Stay of proceedings.-An appeal by the defendant from an order denying a motion for a new trial, without an order to stay plaintiff's proceedings, or giving such security as makes the appeal a stay, does not preclude the plaintiff from entering a regular judgment. Valton v. National Loan Fund Life Assurance Society, 19 How. 515; S. C. Rev'd, 26 id. 602 (n.) b. Before or after judgment.-An appeal from an order denying a motion for a new trial, made on the judge's minutes, may be taken to the general term before or after judgment has been entered in the action. Lane v. Bailey, 30 How. 76; S. C. 45 Barb. 119; 1 Abb. N. S. 407; contra, Magnus v. Trischet, 2 id. 175. c. Power of supreme court.—In reviewing a motion for a new trial, the general term has the power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict and grant a new trial. Macy v. Wheeler, 30 N. Y. (3 Tiff.), 231; S. C. 18 Abb. 73. f. There must be an appeal from an order denying a motion for a new trial in order to review it. The general term will not review such an order on an appeal from the judgment. Marquart v. La Farge, 5 Duer, 559; Ogden v. Coddington, 2 E. D. Smith, 317; Brown v. Richardson, 1 Bosw. 402; S. C. Rev'd 20 N. Y. (6 Smith), 472. g. On terms.-A party who is not entitled to a new trial as a matter of right, cannot, on an appeal by him from an order granting a new trial on terms, procure its reversal on the ground that terms were imposed. Burger v. White, 2 Bosw.92. h. The order of affirmance, at general term, of an order denying a motion for a new trial on a case, after judgment, should not direct that the judgment be affirmed. Miller v. Eagle Life and Health Insurance Co. 3 E. D. Smith, 184. v. Judd, 18 How. 385. But see Malan v. Simpson, 20 How. 488; S. C. 12 Abb. 225. d.of court of appeals.-The court of appeals is confined to the correction of errors of law only, and has no power to review i. As to costs on appeal from an order any questions of fact determined in the sub-granting or refusing a new trial, see Jackett ordinate courts. When a new trial has been granted in the court below, the court of appeals must affirm the order, if it can stand consistently with any view to be taken of the evidence given at the trial, where the trial was by jury. Macy v. Wheeler, 30 N. Y. (3 Tiff.), 231; S. C. 18 Abb. 73. See, also, Miller v. Schuyler, 20 N. Y. (6 Smith), 522. j. An appeal does not lie to the court of appeals from an order denying a motion for a new trial on account of surprise and newly discovered evidence. Lawrence v. Ely, 38 Ň. Y. (11 Tiff.), 42; S. C. 5 Trans. App. 128. VERDICT SUBJECT TO THE OPINION OF THE COURT AT GENERAL TERM. a. In jury trials only, can the finding be made subject to the opinion of the court at general term. Malloy v. Wood, 3 Abb. 369; S. C. 14 How. 67, sub nom. Mallory v. Wood; 6 Duer, 657. b. The facts must be undisputed. Porter v. Lobach, 2 Bosw. 188; Cobb v. Cornish, 16 N. Y. (2 Smith), 602; S. C. 6 Abb. 129; 15 How. 407; Gilbert v. Beach, 16 N. Y. (2 Smith), 608; Chambers v. Grantzon, 7 Bosw. 414; Brower v. Orser, 2 id. 365; Bell v. Shibley, 33 Barb. 610; Beebe v. Ayers, 28 id. 283; Whitaker v. Merrill, id. 526; Have meyer v. Cunningham, 8 Abb. 1. c. Credibility of witnesses, etc.Where the credibility of witnesses is in ques tion, and there is evidence in conflict with their testimony which should go to the jury, and exceptions to the admissibility of testimony, it is not a proper case to direct a verdict subject to the opinion of the court at general term. Sackett v. Spencer, 29 Barb. 180; Purchase v. Matteson, 25 N. Y. (11 Smith), 211; S. C. 15 Abb. 402; Dickerson v. Wason, 48 Barb. 412; Purchase v. New York Exchange Bank, 10 Bosw. 564. d. When exceptions are taken on the trial upon which the parties have a right to be heard on a motion for a new trial, it is a mistrial to direct a verdict subject to the opinion of the court at general term, and a new trial will be granted for such error, although from the case the judgment appears to be correct upon the merits. Cobb v. Cornish, 16 N. Y. (2 Smith), 602; S. C. 6 Abb. 129; 15 How. 407. See, also, Bangs v. Palmer, 16 id. 542; Beebe v. Ayres, 28 Barb. 275; Devoe v. Hackley, 3 Rob. 679. e. Special verdict.-A verdict subject to the opinion of the court at general term is only applicable to a general verdict; where the verdict is wholly or in part special, application for judgment must be made in the first instance at special term. Gilbert v. Beach, 16 N. Y. (2 Smith), 606. f. Directing judgment to be entered for the plaintiff, subject to the opinion of the court at general term, is a mistrial. Freeborn v. Wagner, 49 Barb. 43; S. C. Aff'd, 4 Keyes, 27. Directing judgment for the plaintiff for a certain sum, subject to the opinion of the general term, and in case the general term sustains the plaintiff's right of action, a reference to ascertain the plaintiff's damages is irregular. Buchanan v. Cheseborough, 5 Duer, 238. g. The only effect of rendering a verdict in favor of a party, subject to the opinion of the general term, is, that it devolves on him to prepare the case upon which the general term is to render judgment. It is entirely immaterial in whose favor it is rendered. Cobb v. Cornish, 16 N. Y. (2 Smith), 604. h. The entry of judgment is suspended by such a verdict, until the decision at general term. id. Roosa v. Snyder, 12 How. 286. i. Failure to make case.-Where the party in whose favor the verdict is rendered, neglects to make a case, the other party may give notice of application at the next term for judgment, and if sufficient excuse is not then shown for not making the case, the court will order judgment to be entered for the other party. Jackson v. Case, 12 Johns. 431. j. By consent.-Where a verdict subject to the opinion of the court is improperly taken, a new trial will be ordered. Chambers v. Grantzen, 7 Bosw. 414. Unless the parties consent that the court hear and determine the motion. Porter v. Schepeler, 2 Bosw. 188; Whittaker v. Merrill, 28 Barb. 526. But, see Purchase v. Mattison, 25 N. Y. (11 Smith), 211; S. C. 15 Abb 402. k. Objection not taken below.An objection not taken in the court below, cannot be raised for the first time on appeal, provided the objection if taken below could have been obviated. City of Brooklyn v. Brooklyn City Railroad Co. 8 Abb. N. S. 356; Levin v. Russell, 42 N. Y. (3 Hand), 251; | Cary v. Marston, 56 Barb. 27; Walker v. Gilbert, 2 Daly, 80; Meyer v. Fiegel, 7 Rob. 122, 128 ; S. C. 34 How. 434; Monk v. Union Mutual Life Insurance Co. 6 Rob. 455; Shafer v. Guest, id. 264; S. C. 35 How. 184; Hazard v. Spears, 4 Keyes, 469; Champney v. Blanchard, 39 N. Y. (12 Tiff.), 111; S. C. 6 Trans. App. 53; Wolfe v. Security Fire Insurance Co. id. 286; S. C. 39 N. Y. (12 Tiff.), 49; Draper v. Stouvenel, 38 N. Y. (11 Tiff.), 219; Fountain v. Pettee, id. 184; S. C. 6 Trans. App. 241; Hoxie v. Allen, id. 223 ; S. C. 38 N. Y. (11 Tiff.), 175; Phillips v. Terry, 5 Abb. N. S. 327; S. C. 3 Keyes, 313; 1 Trans. App. 235; Shaw v. Smith, id. 316; S. C. 5 Abb. N. S. 129; 1 Trans. App. 283; Rosebrooks v. Dinsmore, id. 265 ; S. C. 5 Abb. N. S. 59; 36 How. 138. But if the objection, when taken below, could not have been obviated, an omission to take it there does not prevent a party from subsequently raising it upon appeal. Brookman v. Hamill, 54 Barb. 209. See 2 Wait's Law and Practice, 903. 1. Objections which might have been obviated, if suggested at the trial, will not be entertained by the general term, on an application for judgment. McKensie v. Farrell, 4 Bosw. 193. m. Judgment of general term.Where a verdict is properly taken, subject to the opinion of the court at general term, judgment may be rendered at general term either for the plaintiff or for the dismissal of the complaint. Crittenden v. Empire Stone Dressing Co. 3 Abb. 71; S. C. 6 Duer, 30, sub nom. Chittenden v. Empire Stone Dressing Co.; Kelley v. Upton, 12 How. 140. n. The question is, where the verdict is subject to the opinion of the court, which party is entitled to judgment upon the facts established, and unless the objection has been taken at the trial, the verdict may be supported upon any theory consistent with the facts, though not suggested by the pleadings. Oneida Bank v. Ontario Bank, 21 N. Y. (7 Smith), 490. And the court will draw, in support of the verdict, every inference from the evidence which a jury would be justified in drawing. Williams v. Insurance Co. of North America, 1 Hilt. 345. 0. Setting aside verdict.-Where a verdict is directed subject to the opinion of the court, at general term, upon facts specially found by the jury, a motion cannot be entertained at general term to set aside such findings of the jury as against evidence. Such a motion must be made in the first instance at special term. Purvis v. Coleman, 1 Bosw. 321; S. C. Aff'd, 21 N. Y. (7 Smith), 111. p. An exception to a nonsuit may be heard in the first instance at general term. Lake v. Artisans' Bank, 3 Keyes, 276; S. C. 3 Abb. N. S. 209; 1 Trans. App. 71; Rev'g S. C. 17 Abb. 232. q. Costs.-Where, on a verdict subject to the opinion of the court at general term, a new trial is granted on the suggestion that deficiency of proof can be supplied, the court will impose upon the party making the application the payment of the costs of the trial, and of all subsequent proceedings, as a condition of granting such new trial. Kelley v. Upton, 12 How. 140. r. Whether a motion in arrest of judgment may be made under the Code,| quere? Snell v. Snell, 3 Abb. 426; Noxon v. | Bentley, 7 How. 316; Duel v. Agan, 1 Code R. 134. Mistakes of the court upon the trial, or of the jury in giving their verdict, are no grounds for a motion in arrest of judgment, which can only be based upon some defect in the record. People v. Thompson, 41 N. Y. (2 Hand), 1. SECTION 266. CHAPTER IV. Trial by the court. Trial by jury, how waived. 267. On trial by court, judgment to be given in twenty days. 269. Proceedings upon judgment upon issue of law. § 266. [221.] (Am'd 1849.) Trial by jury, how waived. Trial by jury may be waived by the several parties to an issue of fact in actions on contract, and with the assent of the court, in other actions, in the manner following: 1. By failing to appear at the trial; 2. By written consent, in person or by attorney, filed with the clerk; 3. By oral consent in open court, entered in the minutes. a. Waiving constitutional provision. In a civil case, a person may waive a beneficial constitutional provision. Van Hook v. Whitlock, 26 Wend. 43; Aff'g S. C. 7 Paige, 373; and S. C. 3 id. 410; S. C. 2 Edw. Ch. 304. Where a party has waived a constitutional provision, he cannot subsequently ask for its protection. Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 472; Baker v. Braman, 6 id. 47; Embury v. Conner, 3 N. Y. (3 Comst.), 511; Rev'g id. 2 Sandf. 98; Tombs v. Rochester and Syracuse Railroad Co. 18 Barb. 583, 585. b. — in criminal cases.-Parties have not the power to modify by their consent, the substantial constitution of the legal tribunal, and the fundamental mode of its proceedings. Cancemi v. People, 16 N. Y. (2 Smith), 501; S. C. 7 Abb. 271, sub nom. People v. Cancemi, more fully reported. In a criminal case, a prisoner cannot be tried and convicted on the verdict of eleven jurors, although he may have consented to be tried by them. People v. Cancemi, supra. c. Failure to appear no waiver.— The failure of one of the parties to appear at the trial is, by no means, a waiver of a jury trial under subd. 1, § 266 of the Code. Hendricks v. Carpenter, 4 Rob. 665; Aff'g S. C. 2 Rob. 625; S. C. 1 Abb. N. S. 213. d. Waiver of jury and inquest.Where the defendant does not appear, the plaintiff may waive a jury, and take an in quest before the court in a cause at the circuit out of its regular order on the calendar. Semble, that this should be done before the jury are discharged for the circuit, for the reason that the defendant might claim his right to a jury. Haines v. Davis, 6 How. 118; id. 120. Compare, however, the case of Dickinson v. Kimball, 1 Code R. 83. e. Example of waiver.-The principles of legal and equitable jurisdiction remain distinctive and undisturbed, although united in the same tribunal under the Code. If the court is called upon by the plaintiff to exercise its jurisdiction upon principles of equity, he elects thereby his mode of trial. This is the rule, notwithstanding the fact that he might at law have demanded a jury trial. New York and New Haven Railroad Co. v. Schuyler, 34 N. Y. (7 Tiff.), 30. Where two causes of action are joined, the one legal and the other equitable, if the defendant, after just opportunity, does not demand a jury trial for the issues it is proper to try with a jury, he may be held to have waived such a trial. Bradley v. Aldrich, 40 N. Y. (1 Hand), 504. f. Example of non-waiver.—Where a defendant excepts to the finding of facts, and to the conclusions of law by a judge, he does not by that means waive the right to a trial by jury. Nor is he estopped on appeal from taking the ground that the trial by the judge at chambers was irregular. Fasnacht v. Štehn, 53 Barb. 650; S. C. 5 Abb. N. S. 338. 9. Entering upon trial without objection. The right to trial by jury may be waived, and if a party enters voluntarily upon a trial by the court, he thereby consents to that form of trial. Greason v. Keteltas, 17 N. Y. (3 Smith), 498; M'Keon v. See, 4 Rob. 449. See, also, Moffat v. Mount, 17 Abb. 4; S. C. 10 Bosw. 468, sub nom. Mof- § 267. [222.] (Am'd 1849, 1860, 1865, 1870.) On trial by the court, judgment to be given in twenty days. Upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately; and upon a trial of an issue of law, the decision shall be made in the same manner stating the conclusions of law. Such decisions shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly, four days thereafter. If upon motion by either party, to a general or special term of the court, it shall be made to appear that the decision is unreasonably delayed, the court may make an order absolute for a new trial, or may order a new trial unless the decision shall be filed by a time to be specified in the order. The costs of the former trial shall abide the event of the new trial. the case, as necessary in a special verdict. a. Findings of judge on questions of fact.-Where a case has been tried before a judge, his findings upon questions of fact are conclusive. This is under the same rule that the findings of a jury, or a referee, are conclusive upon that question. Ritter v. Cush-head, People el rel. Cahoon v. Dodge, 5 How. man, 35 How. 286; S. C. 7 Rob. 294. See, also, Hoogland v. Wight, 7 Bosw. 394; S. C. 20 How. 70; Davis v. Allen, 3 N. Y. (3 Comst.), 168. It would be highly improper for the counsel for the defeated party to be present at the finding of facts by the judge who tried the cause, or to have any voice in saying what those findings should be. People v. Albany and Susquehanna Railroad Co. 39 How. 49; S. C. 8 Abb. N. S. 122; S. C. Aff'd, 2 Lans. 459. If there are no findings of fact the appellant is not entitled to be heard on appeal. Leland v. Cameron, 31 N. Y. (4 Tiff.), 115 ; Doty v. Carolus, id. 548; Bridger v. Weeks, 30 N. Y. (3 Tiff.), 328. b. Judge's decision in writing.—The non-observance of the provision of this section, which requires a judge by whom a cause is tried without a jury, to file his decision in writing within twenty days after the trial, furnishes no ground for the reversal of his judgment; it is simply directory. Stewart v. Slater, 6 Duer, 83. The decision required by the Code in this section (267) should embrace a distinct determination of the material issues raised by the pleadings. It is not a compliance with the law, to direct that a certain judgment be entered. Burger v. Baker, 4 Abb. 11. A judge in such a case is not, however, bound to state in his decision all the facts in Where the d. Plaintiff nonsuited. e. Referee's report.-New Rule 39 of f. The whole case must be decided. The judge holding the court at which issues of fact are tried, must determine the whole case. Van Valen v. Lapham, 13 How. 240, 246; S. C. Aff'd, 5 Duer, 689. Where specific performance of a contract, or damages for non performance, is requested, and it is shown that the defendant is incapable of performance, the court will not dismiss the complaint, but will award damages. Barlow v. Scott, 24 N. Y. (10 Smith), 40. See, also, New York Ice Co. v. Northwestern Insurance Co 23 N. Y. (9 Smith), 357; Stevenson v. Buxton, 37 Barb. 13. 9. Requirements of judge's decision. It is not necessary that the decision of the judge do more than find generally in favor of either plaintiff or defendant. Johnson v. Whitlock, 13 N. Y. (3 Kern.), 344; Otis v. Spencer, 16 N. Y. (2 Smith), 610; S. C. 15 How. 425; id. 6 Abb. 127. The decision is to be treated as the verdict of a jury. Osborn's administrator v. Marquand, 1 Sandf. 457; Hoppe v. Robbe, 1 Cal. 373; Breize v. Doyle, 19 Cal. 101; Mann v. Whitbeck, 17 Barb. 388; Gilbert v. Luce, 11 id. 92. It must be carefully borne in mind that these decisions were rendered prior to the amendment of 1860. h. Remedy for judge's errors. Where a party feels aggrieved at the finding of the judge, the proper remedy is not an exception, but a motion before the judge that the finding be corrected. If the party omits to have the finding corrected, even in a proper case, it cannot be considered on an appeal from the judgment. Sharp v. Wright, 35 Barb. 236; Niles v. Price, 23 How. 473; People ex rel. Martin v. Albright, 14 Abb. 305; S. C. 23 How. 306. Where the judgment is substantially correct, the court, on appeal, will make the proper modifications and affirm the judgment. Casler v. Shipman, 35 N. Y. (8 Tiff.), 535; Bunten v. Orient Mutual Insurance Co. 2 Keyes, 667; Aff'g S. C. 8 Bosw. 448. i. Failure to file decision in writing. Where there is no pretence of merits, or that the action was not correctly decided, the omission to file the decision in writing may be disregarded under § 176 of the Code. Lewis v. Jones, 13 Abb. 427. The finding of facts may be filed after judgment has been rendered. Vermule v. Shaw, 4 Cal. 214. It must clearly appear on the moving papers, that no decision has, in fact, been filed, where a motion is made to set aside a judgment for irregularity in this respect. Lewis v. Jones, 13 Abb. 427. j. General exception.-Where there is a mixed finding of law and fact, a general exception to the decision will not raise the question as to whether the fact found is sustained by the evidence. People ex rel. Martin v. Albright, 14 Abb. 305; S. C. 23 How. 306. k. When judgment may be entered. In a case where the plaintiff has a judgment, subject to an accounting, he cannot enter his judgment until the accounting has been had. McMahon v. Allen, 27 Barb. 335; S. C. 7 Abb. 1. The only authority needed for entering judgment is the decision of the judge. Loeschigk v. Addison, 3 Rob. 331; Chamberlain v. Dempsey, 14 Abb. 241; 9 Bosw. 212. Where an issue of fact has been tried by the court, the prevailing party, immediately upon filing the decision of the judge, may enter his judgment. Lynde v. Cowenhoven, 4 How. 327; S. C. 3 Code R. 7, sub nom. Lynde v. Couvenhoven; Renouil v. Harris, 2 id. 71; S. C. 2 Sandf. 641. 1. Appeal, conflicting evidence.The court in banc will not weigh the evidence for the purpose of ascertaining whether the court below came to a correct conclusion, and will not disturb a judgment when there is any evidence to sustain it, even where, upon examination they might think a different conclusion should have been reached. It is well settled that the finding upon conflicting evidence will not be disturbed by an appellate court. Foote v. Roberts, 7 Rob. 19. See, also, Hall v. Morrison, 3 Bosw. 520; Morris v. Second Avenue Railroad Co. 8 id. 679; Bearss v Copley, 10 N. Y. (6 Seld.), 93; Woodruff v. McGrath, 32 N. Y. (5 Tiff.), 255. m. Exception to referee's report.The report of a referee cannot be excepted to on the ground that he has not found certain facts, especially where it is not shown that he was requested to find them, and did not refuse to do so. Ashley v. Marshall, 29 N. Y. (2 Tiff.), 494; Aff'g S. C. 30 Barb. 426; 19 How. 110; 9 Abb. 361. See, also, Smith v. Coe, 29 N. Y. (2 Tiff.), 666; Aff'g S. C. 2 Hilt. 365. n. Insufficient statement of facts.Where an appeal is taken to the court of highest resort, and the case contains no statement of the facts found by the court which first tried the action, as is required by this section (269) of theCode, but does not embrace a statement of facts signed by the presiding justice of the general term who heard the cause on appeal, the appeal will be dismissed. Such a statement is no compliance with the requirements of this section, and cannot be regarded as a substitute for the statement of facts required by it. Essex County Bank v. Russell, 29 N. Y. (2 Tiff.), 673. 0. What appellant is bound to show affirmatively.-An appellant is not entitled to claim as error, an omission of a ref eree, or a judge without a jury, to pass upon a material fact; he is bound to procure a record on appeal, which shall show affirmatively that such referee or judge decided erroneously on such fact. Heroy v. Kerr, 21 How. 409; S. C. 8 Bosw. 194; S. C. Aff'd 2 Keyes, 582; 31 How. 639, (n.) p. No provisions in judgment, not embraced in the decision.-Where the issues of fact are tried by a court without a jury, the judgment which is entered upon the decision must not contain any provisions not embraced in such decision. Loeschigk v. Addison, 19 Abb. 169; S. C. 3 Rob. 331. q. Appeal on questions of fact.-On a trial before a judge without jury, or before a referee, questions of fact are open to examination only upon appeal to the general term of the court in which the trial took place. Rice v. Isham, 1 Keyes, 44. |