Friedman v. Friedman

Full title: ISIDOR FRIEDMAN, Plaintiff, v . ELSIE FRIEDMAN, Defendant

Court: Supreme Court, Kings Special Term

Date published: Mar 1, 1924

122 Misc. 700 (N.Y. Sup. Ct. 1924)

204 N.Y.S. 550

Opinion

March, 1924.

Oswald N. Jacob, for plaintiff.

Isidor E. Schlesinger, for defendant.

LEWIS, J.

This is an application for a new trial of specific questions of fact in an action for absolute divorce tried before a judge and a jury at Trial Term. The application is made at the Equity Term of the court upon the minutes of the trial.

It is claimed that the court has authority to entertain the application pursuant to rule 221 of the Rules of Civil Practice, the 2d paragraph of which rule provides: "If the motion for a new trial be made for the purpose of reviewing a trial by jury of one or more specific questions of fact, arising on the issues in an action triable by the court, the motion 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."

That portion of the rule is the last sentence rewritten of section 1003 of the Code of Civil Procedure. Clevenger's Tables of Practice Acts, Source Table, 517. The Rules of Civil Practice are not to override or change the settled meaning of the Code or the sections of the Civil Practice Act, but to cover details "not inconsistent" therewith. Judiciary Law, § 93; Parsons' Practice Manual, 1922, prefix, pp. XI, XII, XIII.

The former Code sections with reference to motions for new trial are preserved in the new practice either in the Civil Practice Act or in the rules. Section 999 of the Code of Civil Procedure is now section 549 of the Civil Practice Act; section 1002 of the Code of Civil Procedure is now section 552 of the Civil Practice Act, and section 1003 of the Code of Civil Procedure is now section 553 of the Civil Practice Act, except that the last sentence, as stated, is found in rule 221. The practice, therefore, is the same as it was under the former Code and Rules.

The motion for a new trial where specific questions of fact have been tried by a jury may be made before the justice presiding at the trial upon the minutes, but when made before the term where the motion for final judgment is made the motion must be made upon a case settled as required by rule 221 of the Rules of Civil Practice.

Motion denied.

Ordered accordingly.