I concur in the affirmance of the judgment; but I do not in the reasoning of the majority of the Court, that a motion for a new trial will not present, for the consideration of the Court below, and of this Court, any misdirection or improper instruction of the Court to the jury, whether excepted to on the trial or not. I am of opinion that such misdirection or instruction properly comes up for consideration on such motion, although not excepted to when given.
Judgment affirmed.
D. A. Smith, for the plaintiff in error, moved for a re-hearing in this cause, and cited 3 Wend. 418; Archer v. Hubbell, 4 Wend. 514; Benham v. Cary, 11 Wend. 83.
The motion was overruled.