Opinion of the Court, per PECKHAM, J.

The general rule, as declared by courts and commentators, is, that a guardian in socage may take the land "during the guardianship." (Field v. Schieffelin, 7 Johns. Ch., 150.) The chancellor says: "The guardian in socage may lease it and dispose of it during guardianship." So Lord ELLENBOROUGH : "He may dispose of it during his guardianship." (King v. Inhab. of Oakley, 10 East, 491.) "By the common-law, neither the guardian in socage nor any other had power * * * to lease the freehold estate of the ward for any longer time than during the probable continuance of the trust, that is, in the case of guardianship by socage, until the age of fourteen." (Chancellor WALWORTH, in Putnam v. Ritchie, 6 Paige, 390at 399.) Littleton says: "When the heir cometh to the age of fourteen complete, he may enter and oust the guardian in socage," and make him account. (Litt., § 123; Co. Litt., 88 a.) Comyn says he may lease of the infant's estate till his age of fourteen years. (Comyn, title Guardian, B, 4.) To the same effect see Wade v. Baker (7 Ld. Ray., 131).

So it has been held in New Jersey, that a lease extending beyond the age of fourteen of the ward is voidable, and may be avoided by another guardian, chosen by the infant, after his arrival at fourteen. (Snook v. Sutton, 5 Halst., 183.)

It is stated that the office of testamentary guardian, up to twenty-one, and of guardian in socage up to fourteen, are the same; and a lease for twenty-one years by the testamentary guardian is absolutely void, when the heir attains twenty-one. "It follows, that a lease by the guardian in socage is void when the heir attains the age of fourteen." (McPherson on Infants, p. 36; Roe v. Hodgson, 2 Wils., 129, decided at 135.)

This precise point seems not to have been decided. As an original question, and in analogy to the authorities, there would seem to be a propriety in holding that the guardian could have no power to grant any more than his own title.

It is probably as well for the interests of the infant, as it seems sound in law, under the principles declared, to hold that the guardian may lease for a time as long as he continues guardian, or for any number of years within the minority of

Statement of case,

the infant, subject to being defeated by another guardian being appointed pursuant to the statute.

It is urged here that one of these infants is under fourteen years of age, when this action was commenced. Under our statute, the age of fourteen has nothing to do with the rights of guardians. They continue only until another guardian is appointed, without any reference to the ward's age of fourteen. Another guardian may be appointed, as well before as after that age, under our statutes. (2 R. S., 151, §5.)

The title and interest of a guardian in socage are superseded, under our statute, unlike any other guardian, without any fault on his part, by the appointment of another guardian, at any time.

I see no necessity for holding this lease void. It was voidable by the new guardian, and he properly signified his intention to avoid it at the end of the year.

All concur.
Judgment affirmed.

46 598 123 123 46 598 132 437

WILLIAM M. TRACEY and JAMES WELSH, Respondents, v.
ABRAHAM ALTMYER, impleaded, etc., Appellant.

An order denying a motion for a new trial on the ground of newly dis-
covered evidence, cannot be reviewed upon the merits in this court. But
where it appears that the merits of the application were not considered
by the court below, from an erroneous supposition of want of power, and
that the order was based upon that ground, it is appealable, and will be
reversed in this court. It is incumbent upon the appellant, however, to
show this affirmatively.

A motion can be made at Special Term for a new trial upon the ground, that the verdict is against the weight of evidence, or of surprise, of newly discovered evidence, of misconduct of the jury, or other ground after the entry of judgment on the verdict.

(Argued November 28th, 1871; decided December 5th, 1871.)

APPEAL from judgment of the General Term of the Supreme Court of the first judicial department, affirming a

Statement of case.

judgment in favor of plaintiff entered upon a verdict; also appeal from order affirming an order of Special Term denying a motion for a new trial, on the ground of surprise and newly discovered evidence.

The action was brought to recover for goods alleged to have been sold to defendants as partners.

The facts pertinent to the question raised on appeal from judgment, are sufficiently stated in opinion.

Subsequent to the entry of judgment on the verdict, a motion was made for a new trial on the ground of surprise and newly discovered evidence. The motion was denied with leave to renew. The renewed motion was also denied. In the opinion of the justice, before whom it was made, he states: "I think the motion too late after judgment; for that reason I deny the motion."

S. Hand, for appellant. The order denying a new trial is appealable. (Bright v. Tyson, 1 Burrow, 394; 3 Blk. Com., 388; G. & W. on New Trial, 1086.) The appeal being a matter of right, will be entertained. (Matter of Duff., 41 How., 351; People v. Sup. Court of N. Y., 10 Wend., 286, 398; Tucker v. White, 27 How., 97.) Reasonable time should be afforded for the exercise of this right. (Burt v. Barlow, 1 Doug., 170; Nanevan v. Pearsall, 6 How., 293; 3 Blk. Com., 386.) The rule against the motion, after judgment, frequently relaxed. (Case v. Shepard, 1 John. C., 245; Grant v. Rowb., 3 Cow., 354.) The motion can now be made after judgment. (Laws of 1832, chap., 128; Blydenburgh v. Johnson, 9 Abb., N. S., 459; Benedict v. Coffree, 3 Duer, 669; Nanevan v. Pearsall, 6 How., 294; Malony v. Dows, 18 How., 27; Morgan v. Bruce, 1 Code R., U. S., 364; Tucker v. White, 27 How., 97.)

The order is discretionary (Selden v. D. and H. C.

D. C. Calvin, for respondents. and not appealable to this court. Co., 29 N. Y., 634; Bedell v. Chase, 34 N. Y., 386; Lawrence v. Ely, 38 N. Y., 42.) The motion was too late after judgment. (Rapelye v. Prince, 4 Hill, 119; Gerney v.

Opinion of the Court, per GROVER, J.

Smithson, 7 Bosw., 396; Sheldon v. Stryker, 27 How., 387; Peck v. Hyler, 30 Barb., 655; Potter v. Potter, at fifth district Gen. Term, not reported; Jackson v. Fassett, 7 Abb., 137; Nash v. Wetmore, 33 Barb., 155.) Defendant permitted case to be submitted without objection. He was too late after verdict to allege surprise. (Thompson v. Porter, 8 Bibb, 70; Kirtly v. Kirtly, 1 J. J. Marsh, 96; Carr v. Gale, 1 Curtis Ct. R., 384; Kellogg v. Ballard, 10 Wis., 440; Graham & Waterman on New Trials, 191; McClure v. King, 15 La. An., 220; People v. Mack, 2 Park Cr. R., 673; Peck v. Hiller, 30 Barb., 655.) The evidence was not newly discovered, but not recollected, and therefore, no ground of new trial. (Gregg v. Bankhard, 22 Texas, 245; Johnson v. Blanchard, 5 R. I., 24; Bond v. Cutter, 7 Mass., R., 205; 1 Graham & Waterman on New Trials, 477; Daignan v. Wyatt, 3 Blackf., 385.) The evidence sought was cumulative, and no ground for new trial. (1 G. & W. on New Trial, 486; Gavock v. Brown, 4 Humph., 251; Kirby v. Waterford, 14 Verm., 414; Campbell v. Gennet, 2 Hill, 290; Fleming v. Hallenbeck, 7 Barb., 271; People v. Superior Court, etc., 5 Wend., 127; 10 id., 285; Powell v. Jones, 42 Barb., 24; Parshall v. Klinck, 43 Barb., 203; Peck v. Hiler, 30 Barb., 655; Adams v. Bush, 23 How., 262.)

GROVER, J. The only exception taken upon the trial, which was insisted upon by the counsel for the appellant upon the argument, was that taken to the refusal of the judge to grant a nonsuit. No ground for the motion was stated by the counsel, and it is well settled that such an exception cannot be sustained, for any defect in the plaintiffs' proof, which might have been supplied had such defect been pointed out at the trial. That is a sufficient answer to the exception. A further answer in the present case is, that there was no such defect. That urged upon the argument was that the evidence showing that the appellant was a partner with his co-defendants, was not sufficient to warrant the submission of that question to the jury. Wm. C. Williams, the salesman of the

Opinion of the Court, per GROVER, J.

plaintiffs, who were jobbers in dry goods in the city of New York, testified that one of the co-defendants came to the plaintiffs' store and purchased a bill of goods upon credit, and directed the goods to be forwarded by express to S. & A. R. Altmayer, at Newark, New Jersey. There was no dispute as to the two co-defendants being members of the firm; that he had been referred to the appellant by one of the co-defendants as to the trustworthiness of the firm; that he was directed by Mr. Wilson, one of the plaintiffs, to make inquiry as to that matter; that for that purpose he called upon the appellant and made the inquiry of him; that the appellant said that they were good for all that I could sell them; that he was interested with them; that he was responsible for what they bought; that he reported this conversation to Wilson, one of the plaintiffs. The latter testified that upon receiving this report, and in reliance thereon, he forwarded the goods to the firm as directed; that upon like reliance he subsequently sold to the firm the goods, for the price of which the action was brought.

This was sufficient to require the submission of the question, whether the appellant was a partner, to the jury; and if they found he was liable as such, not only for the goods. then sold, but also for such as the plaintiffs subsequently sold, until they received notice that he was not a partner. The appeal from the order presents questions of greater difficulty. This order cannot be reviewed upon the merits by this court. (Selden, Exrx., v. Delaware and Hudson Canal Co., 29 N. Y., 634; Bedell v. Chase, 34 id., 386; Lawrence v. Ely, 38 id., 42.)

It may be so reviewed by the General Term. (Code, § 349.) The order denied a motion of the defendant for a new trial, upon the ground of surprise and newly discovered evidence. From the opposing affidavits it appeared that judgment had been entered. From the opinion of the judge at Special Term, it appears that the motion was denied solely upon the ground, that it could not be made after the entry of judgment.