Burke v. Burke. for past damages, or for a specified sum of money, but that the court should direct the payment of a reasonable sum per week, during the lifetime of the plaintiff, in enforcement of the provisions of the will. A gross sum for the support of the plaintiff is not asked for, but only a reasonable weekly allowance during his life. The facts of the complaint show the cause of action to be an equitable one, and I do not think that a case is made for a trial by jury under the Code (§ 968), merely because the complaint asks for a direction that the defendant pay $20 a week, or some reasonable sum, for the support of plaintiff (Beil v. Merrifield, 109 N. Y. 207). In the case of Johnson v. Cornwall (26 Hun, 499), the will provided for the support of a colored girl, no specified sum being fixed, and the action was tried as an equity one, and the court fixed the annuity at a certain sum. In the case of Thorp v. Owen (2 Hare, 607), the will provided as follows: "I give the above devise to my wife, that she may support herself and her children according to her discretion and for that purpose;" and the Court of Chancery held that "a legacy to a parent upon a trust to be by her applied, or in trust for the maintenance and education of her children, will certainly give the children a right in a Court of Equity to enforce their natural claims against the parent in respect to the fund on which the trust is declared." In the case of Colton v. Colton (127 U. S. 300), which was an action to enforce a provision in a will similar to the one in the case at bar, the defendant demurred on the ground that a Court of Equity had no jurisdiction. The demurrer was. overruled, and the court said (p. 322): "It will be the duty of the court to ascertain, after proper inquiry, and thereupon determine and declare what provision will be suitable and best under the circumstances, and all particulars and details for securing and paying it." The mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury (Bell 2. Merrifield, 109 N. Y. 207). It has been held VOL. XXXI.—5. Swartout v. Willingham. that in an action by a legatee for the amount due, and for an order directing the conversion of the estate into money by sale, under direction of the court, and payment of the legacy out of the proceeds, the defendant was not enti tled to a jury trial (Gilbert v. Morrison, 6 N. Y. Supp. 491). A careful consideration of the question presented for decision inclines me to the opinion that the action is an equitable one, and that plaintiff is entitled to have it restored to the equity calendar. Motion granted, without costs. SWARTOUT v. WILLINGHAM. N. Y. Supreme Court; Circuit and Special Term, Monroe County; December, 1893. 1. New trials.] A motion for a new trial under Code Civ. Pro., § 999,* on the ground that the verdict is contrary to law, only raises the question whether the verdict is one which the law authorizes the jury to render upon the evidence, and not whether the court's instructions to the jury were erroneous; for although a verdict upon erroneous instructions is contrary to law in the sense that it is not authorized by law, yet it is an error for which the court and not the jury is responsible, and must be pointed out by an exception. Following Richardson v. Van Voorhis, 20 State Rep. 667; S. C., 3 N. Y. Supp. 599. 2. The same.] A court has no discretion to grant a motion for a new trial upon the minutes where the evidence is conflicting upon material points, but is bound to deny it. * Code Civ. Pro., § 999, provides that "The judge presiding at a trial may, in his discretion, entertain a motion made upon his minutes, at the same term, to set aside the verdict, or a direction dismissing the complaint, and grant a new trial, upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law. If an appeal is taken from the order made upon the motion, it must be heard upon a case prepared and settled in the usual manner." Swartout v. Willingham. 3. The same. A motion for a new trial upon the judge's minutes cannot be made upon the ground that the summing up for the unsuccessful party was unjustly cut short; such a motion can only be made upon the grounds which the statute permits. Citing Delaney v. Brett, 51 N. Y. 78, and disapproving the dicta in Campanello v. N. Y. Central, etc. R. R. Co., 15 N. Y. Supp. 670. 4. The same. It seems that the remedy where injustice has been done by the trial court in summarily cutting short a summing up would be to move upon affidavits showing the facts, and to ask for a new trial; but this cannot be done unless upon the trial more time was asked for and refused after the court's attention had been called to the fact that more time was required. Motion by plaintiff for a new trial on the minutes after a verdict for the defendant at the circuit; and also a motion by the plaintiff for a new trial on the ground of newly discovered evidence. Action by Arthur E. Swartout against William Willingham to recover for personal injuries. The further facts are stated in the opinion. A. L. Childs, for plaintiff. Cassius C. Davy, for defendant. RUMSEY, J.-The action was brought to recover for damages sustained by the plaintiff because of injuries. which he received from a collision with a delivery wagon driven by the defendant. The plaintiff was riding down East Avenue upon a bicycle, and the defendant was driving in the opposite direction. The plaintiff was going west, and was riding on the north side of the street, a short distance from the curb, and therefore was upon the right side of the highway as the statute required him to be. The defendant, driving in the opposite direction, was upon the same side of the centre of the highway, but just how close to the curb does not appear. The statement Swartout v. Willingham. of the plaintiff was substantially that as he was riding along the street, at a moderate rate of speed, the defendant turned into the street, and drove towards the plaintiff in such a way as to make it impossible for him to avoid a. collision, and that he was struck by one of the thills of the defendant's wagon and seriously hurt. The claim of the defendant was, that the plaintiff was. riding at a high rate of speed; that the defendant was going east upon the highway, at a distance of twelve or fifteen feet from the curb, leaving plenty of room for the plaintiff to pass upon his bicycle, and that the plaintiff, riding carelessly, ran against the defendant's wagon, striking the forward wheel, and so received his hurts. Very considerable evidence was given by each party to sustain his claim. The case was submitted to the jury, who found a verdict for the defendant, which was amply sustained by the testimony in the case. The plaintiff made a motion upon the minutes for a new trial, which was submitted at the circuit, but the briefs were not filed until after a motion had been made by the plaintiff for a new trial upon affidavits upon the ground of newly discovered evidence, and the briefs in both motions were filed together. No claim is made by the plaintiff that there was any error in the rulings upon the admission of evidence, or in the charge of the court in submitting the case to the jury. The first point made by the plaintiff is that the verdict was contrary to the evidence. This is undoubtedly not well taken because there was, to say the least of it, quite as much evidence to sustain the defendant's contention as there was to sustain the claim of the plaintiff. The next point which he makes is that the verdict was contrary to the law defining the rights of persons riding bicycles on the highway. It is not exactly clear what is meant by this proposition. If it is meant that the jury were not properly instructed with regard to the law of the case, then the only remedy of the plaintiff was to take an Swartout v. Willingham. exception to such portions of the charge as he considered to be erroneous. If he fails to take the exception, then he cannot raise the question upon this motion. But the phrase "contrary to law" in the section of the Code, does not refer to an erroneous decision by the court as to the law of the case. The phrase is used in reference to the verdict and it authorizes the motion "because the verdict is contrary to the evidence or contrary to the law." That means that the verdict is one which the law does not authorize the jury to render upon the evidence presented to them. The phrase refers to the act of the jury in drawing from the evidence a conclusion which is not justified by it, and for that reason may be said to be contrary to the law. It does not refer to any act of the court in giving to the jury directions upon which their verdict is to be based, for although such verdict may be contrary to the law in the sense that it is not authorized by the law, yet it is not an error for which the jury are responsible, but it is an error for which the court is responsible, but to be pointed out by an exception. This seems to be the rule laid down by the General Term of this department, and I think it is the only reasonable rule which can be applied in such cases (Richardson v. Van Voorhis, 20 State Rep. 667). When, in any case, the evidence is examined and is found to be such as warrants the verdict in the case, the verdict cannot be said to be contrary to the law. The verdict here was certainly warranted by the evidence. The point is made that the granting of the motion for a new trial on the minutes is discretionary with the court. That is very true in cases where the motion is based upon the ground that the verdict is contrary to the evidence. The same rules obtain in that case that always have obtained, that where a new trial is moved for because the verdict was against the weight of evidence, the discretion of the court can be exercised by granting a new trial where justice requires it, if it shall be seen that there was not sufficient evidence to support a verdict; but if there was |