Ralph A. Wilcox, Respondent, v. Josiah Fox, Appellant

Ralph A. Wilcox, Respondent, v. Josiah Fox, Appellant. Fourth Department, May 2, 1906. Practice — motion .for new trial cannot be made after adjournment of . . ., Trial Term. A new trial may not be directed except upon a motion made at the term and before the justice'who tried the case ás prescribed by section 999 of the Code of Civil Procedure, of upon a case. and exceptions as prescribed by section 997 of said Code. When the trial court has adjourned simdie the presiding justice cannot thereafter entertain a motion for a new trial. Appeal by the defendant, Josiah Fox, from an order- of the County Court of Onondaga county,. entered in the office' of' the clerk of the county of Onondaga on- the 28th day of July, 1905, vacating and setting aside the verdict of a jury theretofore rendered in. favor of the defendant and the judgment entered .tfiercon, and directing a new trial of' the action: ' ■ . The action was commenced in the County Court of Onondaga county on the 2d day of 'March, 1905, to recover. the value of-medical services alleged to have been rendered to defendant’s wife at his special instancé- and reqtiest. The defendant, in Ins' answer alleged that such -services were rendered' at ,the request of another and under an agreement that such other would pay for the same, and also that the defendant at the time of the commencement of the action was not a resident of the county of Onondaga. O. M. Reilly,. for the appellant. Roscoe R. Wilcox, for the respondent. [MAJORITY — McLennan, P. J.:] McLennan, P. J.: The action, we must assume, was tried upon the issues raised by the pleadings. Whether or not such issues were properly determined we cannot know, as the evidence is not before us. As a result of such trial a jury determined that the plaintiff was not entitled to recover upon the merits, and also by a special verdict found xthat the defendant was not a resident of the county of Onondaga at the time the action was brought. Upon such verdict the defendant, as he had a right to do, entered a judgment dismissing the complaint upon the merits with costs, and served a notice of the entry of such judgment upon the plaintiff’s attorney. ' Upon the rendition of the verdict by the jury, plaintiff’s attorney did not move for a new trial, and so far as appears by the record he was entirely satisfied with the manner in which the case had been submitted to the jury by the learned County Court. After the verdict had been rendered and judgment thereon had been entered and notice of entry given to the plaintiff by defendant’s attorney, the court at which such action was tried adjourned without day and ceased to exist. Thereafter the plaintiff’s counsel made' a motion upon the charge of the court, which is contained in" the record, and upon certain affidavits, to have the verdict so rendered set aside and the. judgment entered thereon vacated. Defendant’s counsel appeared upon the return of such motion and objected specifically that the court did not have jurisdiction to entertain such motion. Notwithstanding, the order appealed from was made. We think it is elementary that a new trial of an action may not be directed unless such motion is made at the term and before the justice who held the same, as prescribed by section 999 of the Code of Civil Procedure, or else upon a case and exceptions as prescribed by section 997 of the Code of Civil Procedure. In the case at- bar the • respondent' did not comply with either of these requirements, and,, therefore, we conclude that the learned trial court was Without jurisdiction to make the order appealed fróm. It follows that the order appealed from should be -reversed, with . ten dollars costs and disbursements, and 'the motion denied, with ten dollars costs. . All concurred, • Order reversed, with ten dollars' costs and disbursements, and motion denied, with ten dollars costs.