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out original jurisdiction of this question. (Code Civil Pro., §§ 999 and 1002; Wright v. Hunter, 46 N. Y., 409; Boos v. The World Mut. Ins. Co., 64 id., 236; Bennett v. Matthews, 64 Barb., 410.)

It is a well settled rule that the trial court must be first asked to correct the errors of the jury. (Thurber v. Townsend, 22 N. Y., 517.) When there is no evidence to support the verdict the question becomes one of law, is the subject of an exception, and may be determined by the appellate court, although it has not been determined by the court below. (Cooper v. Transportation Co., 75 N. Y., 116, 121.)

An appellate court will not consider questions which can be presented only by an appeal from the decision of an inferior court, unless the questions are within the record. The questions need not have been actually determined by the court below, but they must have been presented to such court by an appropriate proceeding, which fact the record must disclose. The appeal book does not show that the question, whether the verdict was contrary to the evidence, was determined by the court below; that it was within the motion made, or was in anywise presented to such court.

It has been several times held that an appeal from an order refusing a new trial on the minutes, accompanied by such a record, does not present this question of fact to the General Term. (De Luce v. Kelly, 5 N. Y. Week. Dig., 32; Gray v. N. Y. Floating Elevator Co., 13 id., 140; Cooke v. Leonard, 17 id., 575; Alfaro v. Davidson, 39 N. Y. Supr. Ct. Repts., 463; S. C., 40 id., 289; McAleer v. Corning, 49 id., 522.) In the cases cited, motions for new trials were made by the defendants in the several cases, and were denied. The appeal book in the several cases did not show the ground on which the several motions were made, or what questions were determined by the orders. In all of the cases the court refused to consider the question of fact, because the records did not show that it had been determined by the court below. In Alfaro v. Davidson, the defendant was granted leave to take this question to the Court of Appeals (40 N. Y. Supr. Ct. Repts., 289), but an appeal was not taken.

Cowles v. Watson (14 Hun, 41) is said to hold a contrary doctrine. In that case the plaintiff had a verdict for nominal damages, and moved for a new trial on the minutes. The order denying the

FOURTH DEPARTMENT, OCTOBER TERM, 1884.

motion recited that a verdict for nominal damages had been rendered; that a motion on behalf of the plaintiff for a new trial had been made on the minutes, and denied. Judginent was entered, a case was made and the plaintiff appealed from the judgment and order. It was objected that the order could not be reviewed, because it did not appear on what ground it was made. The court said: "But two positions could be taken in support of the motion, and the important one is recited in the order, that of the assessment of the plaintiff's damages at six cents." Upon this ground alone the order was reversed, a new trial granted and the appeal from the judgment dismissed. This case was decided by the General Term which decided De Luce v. Kelly, Grag v. The New York Floating Elevator Company and Cooke v. Leonard, and by the same judges, and the cases are not in conflict.

Several exceptions taken by the respondent to rulings upon the admissibility of evidence are contained in the appeal book, which he urges are sufficient to sustain the order granting a new trial, which position is controverted by the appellant. Unless the motion. on the minutes for a new trial was made on the exceptions, the appeal from the order does not bring the exceptions into this court for review. (Dodge v. Mann, 85 N. Y., 643.) In the case last cited a motion was made on the minutes for a new trial, on the ground that the verdict was contrary to the evidence and that the damages were excessive; but the motion did not include the exceptions taken as a ground for a new trial. The judge set aside the verdict as excessive. A case containing exceptions was settled, and the plaintiff appealed from the order (no judgment was entered) to the General Term, which reversed the order, and a judgment was then entered for the plaintiff. The defendant appealed to the Court of Appeals, which held that the exceptions were not before the General Term for review, were not in the Court of Appeals, and dismissed the appeal. It was held in Alfaro v. Davidson that an appeal from such an order, accompanied by such a record, did not present to the General Term the questions of law arising on the exceptions. The appeal from this order brings to this court only the questions which the court below was asked to determine by the motion on which the order was granted. The record not disclosing that the court below was asked to, or that it did determine the ques

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tions of law arising upon the exceptions, those questions cannot be considered on this appeal. Not knowing whether the order was granted on questions of law or fact this court will not speculate as to the ground upon which it might have been granted.

In the cases cited (except Cowles v. Watson) the orders were affirmed because the defendants moving for the new trials were in fault in not specifying the grounds on which they moved. In the case at bar the appellant did not make the indefinite motion for a new trial on the minutes, but it was made by his adversary, who also entered the irregular order. Clearly this was not the fault of the present appellant and he should not suffer for the respondent's irregular practice, as he may, if this order is affirmed and he is compelled to retry the case in the County Court without an opportunity of being heard in this court. Instead of appealing, the appellant should have moved in the County Court to set aside the order as irregular.

A motion for a new trial on the minutes is peculiarly appropriate when the error complained of is manifest, but if a lengthened argument is required to make the error apparent, a motion should be made on a case. (3 Wait's Pr., 423; 2 Whit. Pr., 433.) Except in a plain case, a motion for a new trial should be heard at Special Term, under section 1002, Code Civil Procedure, on a case made pursuant to section 997, Code Civil Procedure. When a motion is decided on the minutes and a case is afterwards made, the questions are not always presented in the same aspect to the appellate court that they were to the trial judge, and especially when the motion on the minutes was based upon errors of the court as well as upon errors of the jury.

It was said in Algeo v. Duncan (39 N. Y., 316): "The power in question is to be cautiously exercised, and it is left to the sound discretion of the judge whether he will act upon his own minutes and the views entertained while the proceedings on the trial are fully in his mind and fresh in the mind of counsel, or whether there is so much of doubt that the case should stand over for more deliberate and careful scrutiny upon a case which shall bring all the evidence again before him; but the power is a useful one, to be exercised in a clear case, and a large saving of expense and delay to both plaintiff and defendant."

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This appeal presenting no question which can be reached by this court, the appeal must be dismissed and the defendant left to move in the court below to set aside this order if he shall be so advised. Should the order be set aside, the plaintiff will have a remedy by a motion for a new trial on a case.

Both parties having slipped in their practice, no costs are allowed either on this appeal.

HARDIN, P. J., and MERWIN, J., concurred.

Appeal dismissed, without costs, and defendant allowed to move in the County Court of Onondaga county to set aside the order appealed from..

MARY L. FISHER AND OTHERS, v. MARY B. LYON AND OTHERS.

Partition—if the clerk of the court is appointed guardian ad litem for an infant defendant in an action of partition, he must give security.

Where, in defau.t of any person consenting to act as guardian ad litem for an infant defendant in an action of partition, the court appoints its clerk to act as guardian, it cannot relieve him from the necessity of furnishing the security required, by section 1536 of the Code of Civil Procedure, from guardians ad litem in such actions.

Chapter 227 of 1833 authorizing the Court of Chancery to dispense with the security required by section 4 of 2 Revised Statutes, 317, in such cases, when' appointing either of the clerks to act as a guardian ad litem, was repealed by chapter 245 of 1880, and has not been re-enacted.

APPLICATION for an order appointing the clerk of the court the guardian ad litem of an infant defendant.

The action was brought to partition lands, and it was sought to have the order relieve the clerk from the necessity of furnishing security. The motion was made upon the usual affidavits and papers. The application had been refused when presented at Special Term, and was made at the General Term in order to get its opinion on the question involved.

PER CURIAM:

FOURTH DEPARTMENT, OCTOBER TERM, 1884.

This action is brought to partition lands. No person having consented to become the guardian ad litem of the infant defendants, the plaintiffs apply for an order appointing the clerk of the court without security.

By the Revised Statutes guardians of minors in partition cases were required before entering upon their duties to execute bonds in such sum and with such surety as the court should direct, conditioned for the faithful discharge of the trust, etc. (2 R. S., 317, § 4.)

By chapter 227, Laws 1833 (3 R. S. [6th ed.], 598), it was provided, in case a disinterested person did not consent to become the guardian of minors in partition cases, that the Court of Chancery might appoint either of the clerks of said court guardian, and dispense with the security required by the Revised Statutes. The section of the Revised Statutes above cited, and chapter 227, Laws 1833, were repealed by chapter 245, Laws 1880. This section of the Revised Statutes was, in substance, re-enacted by section 1536, Code of Civil Procedure, but chapter 227, Laws 1833, has not been re-enacted.

It is urged that requiring an officer of this court to give security, is, in effect, requiring security of the court. The court acts through its agents, from whoin security is required, except in cases otherwise provided for by law. A receiver is an officer of the court, but security is seldom or never dispensed with. The practice in partition cases has been regulated by statute in this State from the earliest times. (2 Jones & Varick, 185.) In Larkin v. Mann (2 Paige, 27) it was held that the practice prescribed by the statute in partition cases, must be followed by the Court of Chancery, so far as practicable. In this case the guardian ad litem was required to give security. The policy of this State has been uniformly not to permit the title of infants to real estate to be divested, except pursuant to

statute.

We think the general power of this court over the persons and estates of minors does not authorize the court to dispense with security in partition cases, even though one of its officers be appointed. Section 472, Code of Civil Procedure, requiring the clerk to act, when appointed, does not dispense with the necessity of giving security.