doubt as to what transpired upon the trial, or whether the whole case was, in fact, disposed of by the court or jury. Same case.

And, however erroneous the verdict may be, it cannot be amended in matters of substance. United States Trust Company vs. Harris, 2 Bosw., 78.

Though admissible, this proceeding is necessarily of rare occurrence. When made at or immediately upon the close of the trial, before the parties have left the court, no notice will be requisite. If subsequently taken, it must be brought on, by motion in the usual form, the necessary facts being proved by affidavit, or by certificate of the judge who presided. See Burhaus vs. Tibbits, supra. A motion to correct, on the ground of misdirection of the judge, cannot be sustained. The question must be brought up in the ordinary manner, on a case. See Brush vs. Kohn, 13 Abb., 51.

§ 247. Special Verdict.

When a verdict of this nature has been rendered, it must be put into form, and a copy served by the prevailing party, and it must be then settled, precisely in the same manner, in all respects, as a case or exceptions. See rule 34. The mode of settlement, and filing, when settled, having been fully considered in the preceding chapter, it will be needless to enter into any formal recapitulation of the practice. See, as to the nature of a special verdict, Williams vs. Willis, 7 Abb., 90.

A special verdict must be prepared with great care and succinctness, and all statements of evidence, as such, must be excluded. It is to contain facts, and not the evidence of facts, so as to present questions of law only, to the court by which the judgment is to be directed, or by which that judgment, when entered, is to be reviewed. See Hill vs. Covell, 1 Comst., 522; Sisson vs. Barrett, 2 Comst., 406; Langley vs. Warner, 3 Comst., 327. Being brought up for adjudication, in connection with the pleadings, it is not necessary for the special verdict to contain any statement of facts admitted by them. See Barto vs. Himrod, 4 Seld., 483. See also, definition of a special verdict, in section 260.

The report of a referee, on a reference to report facts, has, under section 272, the effect of a special verdict. See Marshall vs. Smith, 20 N. Y., 251; Kirby vs. Fitzpatrick, 18 N. Y., 484. It should, therefore, be drawn and brought up for adjudication, in the same manner, and may be reviewed, as to the facts found, on appeal, without exceptions. Same cases. But not so, with respect to errors in the proceedings, or in the determination of the facts. These last questions, if sought to be made the subject of review, must be raised by exception. Kirby vs. Fitzpatrick, supra.

And, so far as regards the merits, a case, for the purpose of reviewing the decision of a referee of the whole issue, has been held to be in the nature of a special verdict. Sturgis vs. Merry, 2 Comst., 189; 3 How., 418.

§ 248. Reservation for Argument.

A case, when prepared, on a cause reserved for argument or further consideration, under section 264, must be settled in the same manner. See rule 34. This provision, though still retained, was more peculiarly applicable to the state of the Code before 1851, under which a judgment became final after four days, unless a direction of this description was made. See Ball vs. Syracuse and Utica Railroad Company, 6 How., 198; 1 C. R. (N. S.), 410.

Under the provisions as they now stand, the power is rarely exercised; nor do the cases, reported since the amendment of 1857, contain any dicta or decisions upon the subject. The practice seems more peculiarly applicable to a case, in which the directions as to the proper judgment to be rendered, upon findings of the jury, on particular questions, in connection with a general verdict, under the power to that effect given by section 263, are attended with difficulty, by reason of their inconsistency (see section 262), or under analogous circumstances.

(a.) HEARING UPON SPECIAL VERDICT.

The motion for judgment upon a special verdict, when rendered, should be made at special term (see section 265), the cause being set down, noticed, and placed upon the calendar accordingly. The application is an enumerated motion, rule 40. The papers are to be furnished by the plaintiff, and served at least eight days before the term, in connection with or previous to the notice. Rule 42. If he neglect to do so, the adverse party may, under the same rule, move that the cause be stricken from the calendar, and that judgment be rendered in his favor. Being a hearing at special term, the papers need not be printed, but, of course, a copy will be required for the judge, and likewise a copy of the pleadings.

The decision, when pronounced, should be entered and served as an order, by the prevailing party, who will proceed to enter his judgment in due course.

§ 249. Verdict Subject to the Opinion of the Court.

This practice, which remained in abeyance, from the original passage of the Code, until 1851, was recognized in that year, and provided for, as it now stands, by section 265, on the amendment of 1852.

It may be convenient to recapitulate the power, which runs in these words:

When, upon a trial, the case presents only questions of law, the judge may direct a verdict, subject to the opinion of the court at the general term, and, in that case, the application for judgment must be made at the general

termi.

The remainder of the section, introduced in 1857, provides for an ulterior review in the Court of Appeals, without the necessity of any special exception. See also section 333, as to preparation, and annexation to the judgment-roll, of a special statement of the facts found, and the conclusions of law thereon, in connection with a review of this

nåture.

The case, when prepared for submission to the general term, should show what took place at the trial, and should be settled and filed in the usual manner. The duty of making it, devolves upon the party in whose favor the verdict has been given.

It must show upon its face, an uncontroverted state of facts, involving only questions of law, so as to present nothing for consideration, but the proper judgment to be rendered. Any attempt to bring up alleged errors, for adjudication, will render the proceeding irregular, and, if carried up to the ultimate tribunal, will subject the party to a reversal, on the ground of mistrial; so, likewise, when any of the facts are left uncertain or contested. Upon this description of verdict, the question is never whether a new trial shall be granted, but which party, upon a conceded state of facts, shall have final judgment. See Cobb vs. Cornish, 16 N. Y., 602 (605); 15 How., 407; 6 Abb., 129; Gilbert vs. Beach, 16 N. Y., 606; Bangs vs. Palmer, 16 How., 542; Beebe vs. Ayres, 28 Barb., 275; Whitaker vs. Merrill, 28 Barb., 526; Sackett vs. Spencer, 29 Barb., 180; Brower vs. Orser, 2 Bosw., 365; Buchanan vs. Cheeseborough, 5 Duer, 238; Clark vs. Dearborn, 6 Duer, 309; Bell vs. Shibley, 33 Barb., 610; Eiseman vs. Swan, 6 Bosw., 668.

Where consistent concessions or special findings have been made, in connection with a general verdict of this nature, the whole of the facts will be taken as conceded. Sharp vs. Whipple, 3 Bosw., 474. See likewise Purvis vs. Coleman, 1 Bosw., 321. In Porter vs. Lobach, 2 Bosw., 188, the court also disregarded an objection, that a material fact was unproved, when no objection had been made on the trial. In Geffcken vs. Slingerland, 1 Bosw., 449, the general term also assumed to decide on questions of fact, though it did not appear that they had been properly determined by the jury.

Where two separate issues had been separately disposed of, the one by a verdict of this nature in favor of the plaintiff, the other by a dis

missal of that portion of his complaint, it was held that he could not review the latter decision, on moving for judgment on the former, unless by permission of the court, or by a special case made, and noticed for that purpose. Dickerson vs. Cook, 3 Duer, 324.

It is immaterial, in point of form, for which party the verdict may be rendered, the only effect being, that it devolves upon the party for whom it is so rendered, to prepare and bring in the case.

Cobb vs.

Cornish, 16 N. Y., 602 (604); 15 How., 407; 6 Abb., 129, supra.

But, when taken in favor of either party, the court will draw in its support, every inference from the evidence, which a jury would be justified in drawing. Williams vs. Insurance Company of North America, 1 Hilt., 345. And, if right on the merits, the verdict may stand, though technically it should have been the other way. See McConihe vs. New York and Erie Railroad Company, 20 N. Y., 495.

On the hearing, the court will pronounce the right judgment upon the acts as conceded; and if the plaintiff fails to make a case, will dismiss his complaint, though the verdict was in form for him, and no technical leave was given to move for a dismissal. Chittenden vs. Empire Stone Dressing Company, 6 Duer, 30; Kelley vs. Upton, 12 How., 140.

And the court should not permit any questions to be litigated, which, if raised at the trial, might have been obviated. McKensie vs. Farrell, + Bosw., 192.

The case, when ready, must be set down for argument on the general term calendar, and notice of the motion for judgment, served in the usual manner upon the adverse party. Being a calendar cause, the papers should be printed, and points made and served as upon an appeal. The decision should be entered as an order of the general term, served in the usual manner, and judgment perfected thereupon.

This mode of procedure seems to have virtually superseded the prac tice of moving for a nonsuit, notwithstanding verdict rendered, though such a motion may still be admissible. See Downing vs. Mann, 3 E. D. Smith, 36; 9 How., 204.

On carrying up his appeal to the ultimate tribunal, from the decision on a case brought up in this form, the appellant must take care to comply with the provisions of section 333, and have the questions or conclusions of law decided at general term, together with a concise statement of the facts, prepared, and settled under the direction of the court below, as it is upon this statement that such review must take place. He should prepare and serve his statement, and submit it, with any proposed amendments, for settlement, by the judge, in the same manner, and pursuing the same line of practice, as on the settlement of a case or exceptions, in the ordinary mode.

BOOK XI.

OF JUDGMENT AND ITS INCIDENTS.

CHAPTER I.

JUDGMENT GENERALLY CONSIDERED.

§ 250. Statutory and Other Provisions.

THE following is the definition of a judgment, as given by the Code: § 245. (201.) A judgment is the final determination of the rights of the parties in the action.

This definition is contained in chapter I., title VIII., part II., of the Code, and has come down unaltered.

The rest of the same chapter refers to judgments by default, and runs thus:

§ 246. (202.) Judgment may be had, if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the provisions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But, if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and, in other cases, shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or ther proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action, he shall be entitled to five days' notice of the time and place of such assessment.