Abbie E. Snelling, Appellant, v. Andrew B. Yetter, Respondent

Abbie E. Snelling, Appellant, v. Andrew B. Yetter, Respondent. (No. 2.) An order denying a new. trial—it may be resettled,'so as to show that the plaintiff excepted, to a dismissal of the complaint. An order denying a motion for a new trial of an action, made upon the minutes of the court, may, upon sufficient proof by the record that the plaintiff excepted in time to a dismissal of the. complaint, be resettled, to the end that it may show that the motion for a new trial was made upon such an exception duly taken. ' Yan Brunt, P. J., dissented. Appeal by the plaintiff, Abbie E. Snelling, from an order of the Supreme Court, made at the Wew York Trial Term and entered in the office of the clerk of the county of Wew York on the 3d day of August, 1897, denying the plaintiff’s motion for the resettlement of an order entered in said clerk?s office on the 30th day of July,. 1897, which denied the plaintiff’s motion for a new trial made upon the minutes. R. L. Redfield, for the appellant. J. Ewen, for the respondent, . [MAJORITY — Barrett, J. :] Barrett, J. : As we have held upon the main appeal that the plaintiff took a. sufficient exception to the dismissal of the complaint to ivarrant the hearing and decision of the motion for a new trial upon the trial justice’s minutes, we think the order appealed from should be modified so as to permit the fact that such exception was taken to appear therein. The learned counsel for the plaintiff, in his application for a resettlement, asked more than he was entitled to, and specified grounds which were not taken. That, however, does not deprive him. of a resettlement as to the ground which actually was taken. . ■ : The order denying the motion for a resettlement should, therefore, be reversed and an order made resettling the original order so-as to read that the motion- therein referred was made upon the plaintiffs exception to the dismissal of the complaint, without costs of this appeal. Rumsey, Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., dissented. [DISSENT — Van Brunt, P. J. (dissenting):] Van Brunt, P. J. (dissenting): I dissent. A formal motion having been made for a new trial at the termination of the trial, a few days subsequently the same was argued, the plaintiff stating various grounds upon which he based his motion. This motion was denied, and an order was entered ■without notice of settlement which contained no reference to the grounds stated upon the argument. A motion was made to resettle this order, which motion was denied, and from such denial the present appeal is taken. It will be observed upon a reference to section 999 of the Code of Civil • Procedure that a motion for a new trial, where the comjdaint has been dismissed, can only be made upon exceptions, and this would be the only ground which could be required to be stated in the order if such motion had been made upon that ground. It nowhere appears, however, that any exceptions whatever were taken upon the trial which could form a basis of a motion for a new trial. Consequently there was no ground authorized by section 999 which could be stated in the order denying the motion. ■ It, is true that the section provides that a motion for a new trial may be made where a verdict is contrary to evidence or contrary to law ;• but such provision does not apply to a direction dismissing the complaint. In such a case the motion for a newr trial, as has been above stated, must be founded upon exceptions, and there being ho exceptions, there was ho ground for the motion. Order reversed, and order entered resettling the original order so as to read that the motion' therein referred to was made upon the plaintiff’s exception to the dismissal of the complaint, without costs of this anneal.