The complaint claims to recover a balance of $552.18, part of the sum of 1,710.24, advanced by Fischer, Blissing & Co., at a foreign port, for the necessities, &c., of a vessel belonging to the defendant, on the request of the master, to enable the vessel to proceed to sea; which demand was by the foreign house assigned to the plaintiffs. The defence is payment, and a general denial of all the allegations of the complaint.
The first objection to the recovery is, that there is no evidence that Fischer, Blissing & Co., the plaintiffs’ assignor, paid any greater sum than the amount of the draft for $1,010.24 for the necessities of the vessel; and if they did, that the additional amount was paid without any authority from the captain of the vessel, or any one else acting for the vessel or her owner, the defendant.
The answer to this objection is, that an average adjustment was made in Hew York of the loss or damages sustained by the •vessel, arising from the injury out of which the necessity for the advances in question arose, and that the firm of Fischer, Blissing & Co. advanced the amount claimed by them at the foreign port. Evidence was given tending to prove that the whole amount of these advances was included in this adjustment as part of the loss or damages sustained, and that the defendant received payment of his loss, so far as he was insured, based upon this adjustment. The evidence was sufficient to support the verdict.
The defendant accepted payment of his loss to the amount insured, which was adjusted, on a statement of damages, including the whole amount of the advances, and exceeding the amount of the draft of $1,010.24, which-he insisted at the trial was all which the plaintiffs’ assignors had advanced for the *93necessities of his vessel, and that there was an entire want of authority to advance any larger sum. The inclusion of this amount in the average adjustment, was an admission that the advances which were claimed to constitute the loss were made for the account of the vessel. The defendant could not claim the benefit of the advances, to enhance'the amount of his recovery from the insurance companies, without being held to have admitted that the advances were actually made, and were authorized. If the advances were unauthorized, he had not sustained the amount of damages which he claimed.
The second objection raised by the defendant’s points is equally untenable.
The bill of particulars contains the items of the claim for $1,710.24, and the complaint seeks to recover a balance thereof remaining unpaid.
The bottomry interest, $151.53, is not sought to be recovered here. " That sum had been voluntarily paid long before suit. Nor does that sum constitute any part of the $1,710.24, as will be seen by reference to the bill of particulars, nor of the balance thereof remaining unpaid.
The sums which had been paid towards the items composing the sum of $1,710.24, were the draft, $1,010.24, and the sum of $147.82, paid by Captain Munson in New York, amounting together to $1,158.06, and leaving unpaid of the principal sum mentioned in the complaint just the balance of $552.18 here claimed.
The objection that the owner is relieved from liability because the master sailed the vessel on shares, is not well taken. The terms of the agreement under which the master sailed the' vessel were not proven. The advances were for the preservation of the vessel, as well as for the advantage of the freight and cargo.
The authorities show a great many nice distinctions in respect to the liability of the owner or master for work and labor, materials, and goods, wares, &c., supplied to vessels under various conditions of the agreement entered into between the owner and the master in respect to sailing or running the vessel. They appear to turn, generally, upon the inquiry to whom the credit must be deemed to have been given, whether to the • master or the owner.
*94The demand in suit arose from a liability of the vessel and cargo for salvage, which the assignors of the plaintiffs advanced to discharge the lien therefor, imd to enable the vessel to proceed on her voyage. I think it entirely clear that no advances were made here upon the credit of the master.
The foregoing considerations embrace all the questions raised by the defendant on the motion to dismiss the complaint; and also the first, second, third, fourth, and eighth requests to charge, and the exception to the charge given to the jury on the request of the plaintiffs.
Eo question was raised by the defendant at the hearing of the appeal in respect to his other requests relating to the charge.
Several exceptions to the admission of evidence were taken by the defendant at the trial, as it appears by the case; but none of them were argued at the hearing, and further reference to them is therefore considered unnecessary.
It is proper to notice a point of practice raised by the plaintiffs. It was insisted by the counsel for the plaintiffs, at the hearing, that the judgment must be affirmed, because no motion for a new trial upon a case or exceptions had been made at the special term.
The action was tried by a jury. The appeal is from .the judgment, and no motion having been'made for a new trial at the special term, of course there is no appeal from an order refusing a new trial.
A motion for a new trial must be made, in the first instance, at special term or circuit, on a case or exceptions, when the action has been tried before a jury. (Code, § 265.) The terms “ case” and “ exceptions” had a well-defined, legal signification when the Oode was framed, and were therein used in the same sense as they had been previously used. A motion for a new trial on a case, prior to the adoption of tfie Code, was an application to the equitable discretion of the court on the merits, as presented by the facts in proof; and was resorted to, generally, when the verdict was supposed to be against the weight of evidence, or the damages were excessive, &c., &c." A bill of exceptions was made when the defeated party wished to urge his strict legal right tó a new trial for alleged errors committed in the course of the trial, to which the attention of the judge had been called by an objection, and an exception had been *95taken to his ruling. Exceptions taken at the trial involve a legal right; and, if well taken, generally secure to the injured party a new trial.
The exception then, as now, raises a question of law. "It sometimes occurred that a party who had failed to obtain a verdict desired to bring before the court exceptions taken at the trial, and also a review of the facts upon the merits, so as to urge that the verdict was against the weight of evidence, as well as to urge his right to a new trial on his exceptions. This was usually done by a bill of exceptions; and the application was made thereon for a new trial before the circuit judge as upon a case.
The same practice is preserved by section 265 of the Code; and if an appeal is taken from the decision of the judge, made either at the circuit or the special term, it must be taken under section 349 of the Code. That is, the order is appealed from because it grants or refuses a new trial.
A review upon the facts can be secured at the general term only in that way when there has been a trial by jury. An appeal under .section 348 of the Code may be taken upon the law in all cases from a judgment entered under the direction, of a single judge of the same court or a referee. No review of the facts can be had on such an appeal where there has been a jury-trial. And it would seem that no such review could be had under this section where the trial had been before a referee, except for the next paragraph, providing expressly for an appeal upon the fact when the trial is by the court or referees.
It is clear that an appeal lies upon the law, from a judgment, when there has been a trial before the judge at the circuit with a jury, as in the present case. Upon such an appeal, under section 348, there is no application to the equitable discretion of the court. The appeal must be considered upon the law only, arising upon such exceptions as were taken to errors committed during the trial.
The present is such an appeal; and the point raised by the plaintiffs’ counsel is not, in my opinion, well taken.
Judgment must, however, be affirmed on this appeal, with costs, as we find no errors to have been committed.
Sutherland, P. J., concurred.
Barnard, J., expressed no opinion.