Argued December 18, 1879
Decided January 13, 1880
Samuel Hand, for respondent.
Henry L. Burnett, for appellant.
After the verdict in this case, the defendant moved for a new trial upon the minutes of the judge before whom the trial was had, and the motion was denied. Judgment was then entered upon the verdict, and the defendant then appealed from the order denying the new trial and from the judgment to the General Term, and there both the order and judgment were affirmed. It then appealed to this court.
There is but one exception in the case, and that is to the exclusion of a question by defendant to one of its witnesses, whether "an average clause in a policy is favorable or unfavorable to an insurance company." I am unable to perceive how the question was material, and I have no doubt it was properly excluded.
But the learned counsel for the defendant claims that there were errors in the charge of the judge; that the verdict was perverse, excessive in amount, and contrary to the law and the evidence; and he contends that these errors can be reviewed here, without any exceptions. For such errors the Supreme Court has ample power to grant new trials, and in the exercise of its discretion, it can grant new trails, although no exceptions were taken upon the trial. But this court can review judgments and grant new trials only for errors of law, and such errors must be pointed out by exceptions taken at the proper time. Such has been the uniform practice of this court, and no decision to the contrary can be found. In Oldfield v. The N.Y. and H.R.R. Co. ( 14 N.Y., 310), where a similar claim was made, COMSTOCK, J., said: "The remaining points of the appellants' counsel, that the damages were excessive, and that the verdict was against evidence and against the law of the case as laid down at the trial, were properly addressed to the Supreme Court, which could reverse the judgment and grant a new trial on those grounds. But this court has no such power. Where a trial and general verdict have been had, we can deal only with questions of law upon exceptions duly taken, and we cannot correct the errors of the jury."
It is claimed, however, that whatever the rule may formerly have been, it has been changed by the New Code, section 999 of which provides that the judge presiding at the trial may entertain a motion upon his minutes to set aside a verdict and grant a new trial upon exceptions, "or because the verdict is for excessive or insufficient damages; or otherwise contrary to the evidence or contrary to the law." The words "contrary to the law" are new. But they confer no new power; the Supreme Court always had that power. It was frequently exercised, and the right to exercise it was never disputed; ( Macy v. Wheeler, 30 N.Y., 231; Algeo v. Duncan, 39 id., 313.)
The judgment should be affirmed, with costs.