#### CHARLES SHEARMAN, Appellant, v. JAMES W. HENDERSON and ORRIN A. CARROLL, Respondents.

*Motion for a new trial on justice’s minutes*— Code, *§284*— when *it may he made.*

The fact that a defendant, upon the trial of an action before a jury, omits to move for a nonsuit or to request that a verdict be directed in his favor, or to except to the submission of -any particular question to the jury, does not prevent him from moving to set aside the verdict, as being founded on insufficient evidence, at the same Circuit, upon the minutes of the justice before whom the action was tried.

*PeaTce*v. *Bell*(7 Hun, 454) not followed.

Appeal by plaintiff from an order setting aside a verdict in his favor at the Yates County Circuit, granted upon á motion made at the same Circuit, upon the minutes of the justice before whom the action was tried, on the ground that it was founded upon insufficient evidence.

*Charles E. King,*for the appellant.

The failure of the defendants to move for a nonsuit, or to ask the court to direct a verdict for the defendants, was an admission that there was sufficient evidence to go to the jury, and the defendants were thereby precluded from moving -to set aside the verdict on the ground of insufficient evidence. *(Peahe*v. *Bell,*14 N. Y. S. C. R. [7 Hun], 454; *James*v. *Chamberlin,*N. Y. Weekly Dig., April 2, 1877, vol. 4, No. -8j *171*Ross*v. *Colby,*10 N. Y. S. C. R. [3 Hun], 548; *Barrett*v. *The Third Am. R. R. Co.,*45 N. Y., 632; S. C., 8 Abb. [N. S.], 216; *Rowe y. Stevens,*12 id., 389; *St. John y. SMnner,*44 How., 198; *Sickles y. Gillies,*45 id., 94; *Hamilton*v. *Third Ave. R. R. Co.,*13 Abb. [N. S.], 318.)

*Morris <& Leary,*for the respondents.

Section 264 of the Code expressly authorizes the judge who tries the cause, upon motion made at the same term, in his discretion, to set aside a verdict and grant a new trial for “ insufficient evidence.” There is no ambiguity in the language, nothing requiring a motion for a nonsuit, or otherwise, as a prerequisite to the motion in this statute. *{Allgro*v. *Duncan,*24 How., 210; 39 N. Y., 313; *Sharkey*v. *Torrilhon,*7 Hun, 343.)

Talcott, J.:

This is an appeal from an order made at the Yates County Circuit, setting aside a verdict in the action found at the same Circuit on the minutes of the court, as being founded on insufficient evidence.

The case does not show that any motion for a nonsuit was made, or that there was any request that a verdict for the defendants be directed by the court, or that there was any exception to the charge of the court, by which the question whether there was a contract made between the parties was submitted to the jury, and the appellant insists that these omissions amount to an admission that the evidence was sufficient to be submitted to the jury, and that the defendants were thereby estopped or precluded from claiming that the evidence was insufficient, and from moving to set aside the verdict on that ground.

A decision of the General Term of the third department *(Peake*v. *Bell,*7 Hun, 454) is cited to sustain this proposition. The case cited is directly in point, and an order setting aside the verdict in that case was reversed for the reasons stated. And sundry cases are cited by Mr. Justice Learned in the opinion, which establish the general rule, that an omission to move for a nonsuit, or for a direction to the jury as to their verdict, operates as an admission that the evidence is sufficient. This is adding to section 264 of the Code a condition or proviso, not contained in it, which authorizes *172fcbe judge wbo tries tbe cause, to entertain a motion on tbe minutes to set aside a verdict and grant a new trial, not only on exceptions, but for *insufficient evidence,*whether exception be taken or not, tbe motion to be made before tbe judge wbo tried tbe cause, and at tbe same term or Circuit at wbicb tbe trial was bad, and while tbe facts and tbe testimony,' together with tbe demeanor and manner of tbe witnesses, may be supposed to be yet fresh in tbe recollection of tbe judge and tbe counsel.

We think tbe cases of *Allgro v. Duncan*(24 How., 210, affirmed, 39 N. Y., 313) and *McDonald*v. *Walter*(40 N. Y., 551) must have escaped tbe attention of tbe learned court wbicb reversed tbe order in *Peake*v. *Bell {supra).*It does not appear in either of tbe cases above cited, from tbe decisions of tbe Court of Appeals that any motion bad been made on tbe trial, wbicb pointed to tbe insufficiency of the evidence; in fact it seems quite apparent that no such motion could have been made. (See opinion of Judge Emott in 24 How., 210.) And in tbe case of *McDonald v. Walter,*the verdict was set aside, because it was apparent that tbe jury must have adopted an incorrect measure of damages. At all events, ,we think tbe decision in tbe third department cited, is contrary to tbe cases in tbe court of last resort above cited.

Tbe appellant also insists and endeavors to show from a critical examination of tbe case, that tbe evidence on tbe subject of whether any contract was shown on tbe part of tbe plaintiff was sufficient to make a conflict of evidence, which has been decided by tbe jury in tbe plaintiff’s favor.

There seems some plausibility in tbe theory of tbe counsel for tbe appellant, but it is not so plain as to require us to reverse tbe decision on that subject of tbe learned judge wbo tried tbe cause, and wbo bad so recently beard tbe testimony and seen tbe witnesses, and could better understand tbe effect and weight to wbicb their testimony was entitled than we can, and -who thought that tbe case should be retried. • •

Order appealed from affirmed, with ten dollars costs and disbursements.

Present — Talcott, P. J., Sshth and IVIebwiN, JJ.

Ordered accordingly.