(76 Hun, 585.)

#### WHITNEY v. WHITNEY.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Trial—Settlement op Issues—Waiter.

Where the parties to an action stipulate that “the issues to be tried by jury in the above-entitled action be stated as follows: * * * and that either party hereto may apply to the court, upon this stipulation, and without notice, for an order stating and settling the said issues accordingly,” and the court at the close of the evidence states the questions to be considered by the- jury, neither party can object that the issues were not formally settled and stated for trial, as required by Code Civ. Proc. § 970.

2. Appeal—What Rbviewable.

Code Civ. Proc. § 1003, provides that where a question of fact is submitted to the jury in an action triable by the court, and the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried. *Held,*that exceptions taken at the trial present no question for review, without such motion for a new trial or direction by the justice.

Appeal from circuit court, Allegany county.

Action by Charles S. Whitney against Sarah E. Whitney for divorce. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and HAIGHT, LEWIS, and BRADLEY, JJ.

George Wadsworth, for appellant.

D. P. Richardson, for respondent.

BRADLEY, J.

The parties were intermarried in January, 1878. This action was commenced in February, 1889; and the plaintiff, by his complaint, alleges various acts of adultery of the defendant with one Ira H. Myers, extending from in the year 1880 into the year 1888. The trial furnished a considerable bulk of testimony. There was no direct evidence of the defendant’s infidelity. The evidence which tended to support that imputation was made up of circumstances related by the witnesses on the part of the plaintiff, and, taken as true, was sufficient to warrant the inference and lead to the conclusion that the charge made against her was true, but not conclusive, in that respect. The evidence tending in that direction was contradicted by that of Myers and the defendant, and, so far as the facts of that character related by the plaintiff’s witnesses could come within the knowledge of those called on the part of the defendant, they were also contradicted or modified by the latter’s witnesses. Thus was presented a conflict in the evidence as to the facts material to the main question; and while, as represented by the record, there was an opportunity for the jury, upon the whole evidence, to have found that the charge against the defendant of marital unfaithfulness was not sustained, the question in that respect was one of fact for the jury, and the evidence sufficient to' support the verdict against her (Ferguson v. *215Ferguson, 3 Sandf. 307; Pollock v. Pollock, 71 N. Y. 137); and it was fairly submitted to them by the charge of the trial court.

It is urged by the defendant’s counsel that the issues for the trial were not properly settled, and for that reason the court erred in permitting the trial to proceed. The statute provides for the application to the court for the purpose, and that, when made, the court must cause the issues or questions to be distinctly and plainly stated for trial. Code Civ. Proc. § 970. When the trial was moved on the part of the plaintiff, the defendant’s counsel objected to proceeding to the trial for the reason that the issues to be tried by the jury were not properly settled. The objection was overruled, and exception taken. The ruling of the court had in its support the fact that the attorneys for the parties had some time before made in writing a stipulation that “the issues to be tried by a jury in the above-entitled action be stated as follows: Whether said defendant is guilty of the adultery charged in the complaint in this action to have been committed with the co-respondent, Ira H. Myers, as therein alleged; and that either party hereto may apply to the court, upon this stipulation, and without notice, for an order stating and settling the said issues accordingly.” And afterwards, upon the motion on the part of the defendant, an order was made by the court stating and settling the issues to be tried, in accordance with such stipulation. This was the situation when the plaintiff’s counsel moved the action for trial at the circuit, and it was by reason of such stipulation and order that the court permitted the trial to proceed. In this there was no error. It was essential to the trial to have the questions to be tried by the jury stated (Code Civ. Proc. § 823), and it was the right of the parties to have them settled for that purpose (Conderman v. Conderman, 44 Hun, 181). This the parties, by their attorneys, did by their stipulation, pursuant to which the order was made to that effect. They thereby waived the right to have, preliminarily to the trial, any questions more specifically stated and settled. The trial, therefore, was properly permitted to proceed, subject to the power of the court to state and submit to the jury any further questions of fact which properly or necessarily were for them to determine; and this was done, after the close of the evidence, by submitting to them the question whether five years had elapsed since the discovery of the adultery, whether it was committed without the plaintiff’s consent, and whether he had voluntarily cohabited with the defendant since its discovery by him. This was, upon the evidence, merely a formal proposition, to be disposed of by the verdict in the event the jury found that the main charge was sustained. While the defendant was not, as matter of course, entitled to a bill of particulars, she in the outset had the right to have the issues express the charges of misconduct on her part with a fair degree of particularity, that she might be apprised of those she was required to meet. Wood v. Wood, 2 Paige, 108; Carrillo v. Carrillo, 53 Hun, 359, 6 N. Y. Supp. 305; Strong v. Strong, 1 Abb. Pr. (N. S.) 233. But since the parties, by stipulation, and the order thereupon entered, as before mentioned, disposed of this matter, no question arises on *216this review whether or not the parties would otherwise have been entitled to or obtained a more specific statement of the questions of fact for the jury. In view of the question for the jury so stated, the defendant’s counsel excepted to the charge of the court that it was not necessary to the result to find that all the charges of adultery alleged in the complaint were proved, and that it was sufficient if they found that one or more of them had been sustained. And, in answer to the request of the defendant’s counsel to submit the question whether or not the defendant was guilty of the adulteries charged in the complaint, as therein alleged, the court said, “You may add to that, ‘either or any of them.’ ” The defendant’s counsel excepted. The question, as submitted by the court to the jury, in respect to the charge of adultery limited their inquiry to the place of residence of the parties. This certainly was not prejudicial to the defendant, and no exception was taken to it. The view which the plaintiff’s counsel sought to urge seems to have been that the form of the issues as stated in the stipulation and preliminary order was such that it was essential to the support of the action that the jury find in the affirmative all the charges of adultery alleged in the complaint, which contained 50 numbered specifications or counts of such charges, or that there should have been a finding of the jury upon each charge contained in the complaint. The latter the court was not requested to have the jury do, and the former may be regarded as not within the reasonable import of the stipulation, as interpreted in view of its purpose in the action. It may be that, if so requested, the court would have submitted to the jury as many specific questions as to time and place as the defendant may have desired, within the allegations of the complaint. There is no support for the contention that there was a mistrial. The action was tried upon the merits, and the verdict was such, upon the main issues tried by the jury, supplemented by the further facts found by the court, as to properly lead to the judgment directed and entered. It was otherwise in Manning v. Monagham, 23 N. Y. 539, where there was no sufficient verdict to permit adjudication of a result.

There was in the present case no motion made for a new trial before the justice there presiding, or at the term where the motion for final judgment was made, nor were exceptions directed by such justice to be heard at general term. For that reason the question arises whether the exceptions taken on the trial are here for review. The statute provides that in actions triable by the court, when a trial by jury of specific questions of fact is had, an error in the admission or exclusion of evidence, or in any other ruling, may, in the discretion of the court, on review, be disregarded if the court is of the opinion that substantial justice does not require the granting of a new trial. And where the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions to be heard at the general term, a motion for a new trial can be made only at the term where the motion for final judgment is made, or the remaining issues of fact are tried, as the case requires. Code Civ. Proc. § 1003. This is somewhat analogous to the practice be*217fore the Code, when feigned issues were awarded for trial by jury, and verdicts taken to inform the conscience of the chancellor. The verdict might be adopted or disregarded by him, and a motion for a new trial of the issue was addressed to his discretion. A nexv trial might not be directed merely on the ground of the reception of improper evidence, or the rejection of that which should properly have been received, if, in the view taken by the court, the result ought not to have been otherwise than it was. Apthorp v. Comstock, 2 Paige, 482; Lansing v. Russell, 2 N. Y. 563. And in its main features the practice in effect is substantially the same since the Code. Acker v. Leland, 109 N. Y. 5, 15 N. E. 743; Randall v. Randall, 114 N. Y. 499, 21 N. E. 1020. The cases before cited were actions in equity, in Avhich the trial of issues by jury is not a matter of right, but is wholly within the discretion of the court. The right to trial by jury of the question of the alleged adultery in the present action was a right of the parties, preserved to them by the constitution. Conderman v. Conderman, 44 Hun, 181. And the statute in such case provides the mánner in which the issues awarded shall be presented for trial, and, further, that “the subsequent proceedings are the same as Avhere questions arising upon the issues are stated for trial by a jury in a case where neither party can as of right require such a trial; except that the finding of the jury upon such issue or question so stated is conclusive in the action unless the verdict is set aside or a new trial is granted.” Code Civ. Proc. § 970. It may be observed that by this statutory provision, with the qualification in respect to the legal effect of the verdict, the practice folloAving it is substantially the same as that relating to feigned issues tried by jury in other cases. Such was the rule of practice in suits for divorce before the Code Mulock v. Mulock, 1 Edw. Ch. 14), and now, in such case, a new trial of the issues so aw'arded Avill not be granted for other than substantial errors upon the trial (Forrest v. Forrest, 25 N. Y. 501, 510; Vermilyea v. Palmer, 52 N. Y. 471; Foote v. Beecher, 78 N. Y. 155, 157). And as regards the review of trials of such specific issues awarded for trial by jury preliminary to the final trial, determination, and disposition of the other and entire issues by the court, the practice as it formerly existed in chancery is substantially preserved and declared by the provisions of the Code before referred to, and with the qualification before mentioned, and that contained in section 1003 of the Code, is the same in all cases as where feigned issues are tried by jury; and in such cases, as the trial is a preliminary one to the final hearing and determination of the action, which is made by the decision of the court, a motion for a new trial of such feigned issues can, in the first instance, be made only before the judge who presided at the trial, or at the term where the motion for final judgment is made or the remaining issues of fact are tried, unless the judge directs that the exceptions be heard at general term. Code Civ. Proc. § 1003. And in case the motion is not so made or directed to be heard, the party to whom the verdict is adverse is, by the practice prescribed in such case, deemed to have acquiesced in the verdict upon such issues. Ward v. Warren, 15 Hun, 600; *218Chapin v. Thompson, 80 N. Y. 275, reversing 18 Hun, 446; Id.,23 Hun, 12, 15, 89 N. Y. 270, 274. As no such motion for a new trial was made, or such direction given for it to be heard, the defendant is in no position to raise here, as against the verdict of the jury, any question upon the rulings in the reception or rejection of evidence at the trial of the issues submitted to them, or as to the force or weight of the evidence in support of the verdict. Nevertheless, a careful examination of the evidence, and of the exceptions taken by the defendant to the rulings upon the admissibility of evidence on the trial before the jury, leads to the conclusion that there was no error in that respect prejudicial to the defendant. At the time that the issues were moved for trial before the jury, the defendant’s counsel, upon affidavits, moved for a postponement of the trial, founded upon the alleged fact that she was in ill health, and unable to attend the trial at that time. This motion was addressed to the discretion of the court, and was denied. The defendant was present, and testified as a witness on the trial. We think there was no such abuse of the discretion of the court in the denial of the motion as to require or justify relief on this review. Borley v. Manufacturing Co. (Sup.) 12 N. Y. Supp. 45. No further question seems to require the expression of consideration. The judgment should be affirmed. All concur.