The only mode of reviewing questions of law determined at the trial is by appeal from the judgment, and not by motion for a new trial. (Code, § 323; Morgan a. Bruce, 1 Code R. N. B., 364.) 1. It is the only mode of reviewing a judgment entered upon the direction of a single judge, except in cases of surprise, mistake, or the like, where the application, is addressed to the favor of the court. (Code, § 348, Rule, 24.) 2. A judgment entered after trial by jury, is a judgment entered on the direction of a single judge. (Code, §§ 278, 255.) 3. A motion for a new trial should be made before judgment; after judgment the remedy must be by appeal. (Watson a. Serwin, 7 How. Pr. R., 10.) 4. By the old practice, a motion for a new trial on a question of law upon a bill *139of exceptions or otherwise, was always heard before the judge who tried the cause, or before the general term. Any other course would be manifestly improper. (1 Bwurr. Pr., 457, 468, 470.)
Roosevelt, J.This cause was tried at the circuit. Certain exceptions were taken by the defendant to the charge of the judge, and a motion is now made at special term before a different judge, on the exceptions thus taken, and on no other grounds, for a new trial after judgment has been entered up. The effect of such motions, if entertained, it is obvious, is to present the unseemly spectacle of a single judge reviewing, and, it may be, reversing, the opinions of one of his brethren having precisely the same authority as himself.
It is said the Code, whether seemly or unseemly, warrants the proceeding. Section 265 declares that a motion for a new trial, on exceptions, must, in the first instance, be heard and decided at “ the circuit or special term,” unless the judge at the tried directs them to be heard first at general term, and in the mean time suspends the judgment. A fair interpretation of this clause would seem to be, that the judge holding “ the circuit or special term” at which the cause was tried, and whose rulings were excepted to, might, before rendering fined judgment, on his own first impressions, be called upon to hear further argument and to grant a new trial, if upon more mature reflection it should appear proper; or, to send the case directly without final judgment to the general term. Indeed, section 264 expressly provides that the judge “ who tries the cause” may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial on exceptions ; but in that case the motion can only be heard at the same term or circuit. It is the same judge and not another who rehears the objections. And this he does not after, but before judgment. Instead of permitting the clerk to “ enter judgment in conformity with the verdict,” he directs him to enter “ an order that the cause be reserved for argument or further consideration,” in other words, that the judgment be suspended for his own review of the exceptions prior to the review by the general term. And this interpretation is in harmony with the language of the title on appeals, which declares, that “ the only mode of reviewing *140a judgment or order in a civil action shall he that prescribed by this title.” A motion for a new trial after judgment, on exceptions merely, is, in effect, an appeal upon the law; and is to all intents and purposes a mere “ mode of reviewing that judgment.” Is it the mode prescribed by the title referred to ? An appeal upon the law, in all cases, says section 348, may be taken to the general term, from a judgment entered on the direction of a single judge of the same court; and it must he taken, says section 332, within thirty days after written notice of “ the judgment.” As the mode prescribed, therefore, in such cases, is by appeal to the general term, and as that is the only mode prescribed, any other mode of effecting a review is, in effect, prohibited. The unsuccessful party, if he desires it, after judgment at the circuit, must apply for a new trial at the general term; and that he can only do by a regular appeal taken in the mode prescribed. The general term, “ upon an appeal from a judgment, may, if necessary or proper, order a new trial.” (Code, § 330.)
The defendant’s motion for a new trial must, consequently, be denied, for want of jurisdiction in the special term to entertain the proceeding; and also, if necessary, it may be added in the order, for want of merits in the exceptions, so that, if the general term, on appeal from this order, should be of opinion that there was jurisdiction, the whole subject, and not ¿he point of practice alone, may be reviewed.
The ease cited from Duer’s Reports only goes the length of holding that, where a judgment is entered as security, a motion for a new trial on exceptions may be entertained. Such a judgment differs from a final adjudication. It stands by agreement upon the footing of a lien merely—a sort of provisional security—which the party is estopped from setting up as a bar to a motion as distinguished from an appeal. It is not a final adjudication of the judge at circuit upon the whole matter, including the exceptions duly entered of record. "Were it so, it could only be reviewed by appeal (in the nature of a writ of error) to a higher tribunal, or to a higher branch of the same tribunal.
Motion denied.