Tbe plaintiff recovered a judgment at tbe special term of the Marine Court, from which the defendants appealed to the general term of that-court. The general term reversed “ the judgment, with costs.” It should have ordered a new trial. Astor v. L’Amoreux, 4 Selden, 107. It is said in a later case (Marquat v. Marquat, 2 Kernan, 340), that where the facts are ascertained upon the trial, either by special verdict or any other form of finding allowed by law, tbe general question, which party is entitled to judgment? arises upon appeal; and in such cases a judgment disposing of the whole cause may be given at a general term, notwithstanding such judgment be adverse to that of tbe special term. But when tbe case is brought for re*353view to tbe general term, upon an allegation of error in tbe trial — in tbe process of ascertaining tbe facts — tbe only judgment wbicb can be properly given for tbe appellant is one ordering a new trial.
Several objections were taken'on tbe trial of tins case at tbe special term, and tbe argument submitted by tbe respondents shows that tbe appeal was predicated upon an allegation of error at tbe trial. No special finding appears to have been made, and tbe judgment of tbe general term may have been founded upon tbe insufficiency of proof on tbe trial. If such was tbe fact, a new trial should have been ordered. Eeversing tbe judgment, with costs, might, in some cases, be regarded as giving judg•ment for tbe defendant, wbicb the general term, as we have sej^, should not have done.
Judgment of tbe Marine Court reversed, and a new trial ordered.