The feigned issues in this case were tried before the court and a jury, and a motion was made for judgment upon the same before the judge at Special Term, and after a further hearing, a final judgment was ordered and judgment was entered. No motion for a new trial on the issues was made before the judgment was entered, nor were the exceptions taken on the trial of such issues ordered to be heard at General Term. The judge refused to entertain a motion for a new trial, on the ground that he had no power, because such motion was made after final judgment, and the General Term reversed the order upon appeal.
We think the General Term erred in its decision. The Code (§ 1003) provides that where the judge who presided at the trial of feigned issues neither entertains a motion for a new trial, nor directs exceptions taken 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.
The case is directly within this provision, and it was only before the judge at Special Term, and before judgment was granted, that the motion for a new trial could be made.
Section 1005 is not inconsistent with the provisions contained in section 1003, and refers to a motion for a new trial of the action itself, and not to a motion for a new trial upon *Page 278 the feigned issues which may have been awarded therein, which, as we have seen, is provided for in another section of the Code.
It follows that the order of the General Term should be reversed, and that of the Special Term affirmed, with costs of appeal.
All concur.
Ordered accordingly.