Scott v. Smith — 133 A.D. 190

Majority

p. 190

David Scott, Respondent, v. Emily I. Smith and Sarah Furst, Copartners, Appellants.

Second Department,

June 4, 1909.

Headnote

Practice — Municipal Court — motion for new trial — newly-discovered evidence — appeal.

A motion for a new trial upon the ground of newly-discovered evidence must he made upon a case.

Such a motion cannot he regarded as made on the minutes, and where no case is made, an order granting the motion will he reversed.

An appeal lies from an ord'er of the Municipal Court granting such a motion as from a judgment.

Appeal by the defendants, Emily I. Smith and another, copartners, from an order of the Municipal Court , of the city of New York, borough of Brooklyn, entered on the 22d day of March, 1909.

James A. Sheehan, for the appellants.

No appearance or brief for the respondent.

The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly-discovered evidence. Tins appeal lies as from a judgment (Mun. Ct. Act [Laws of 19013, chap. 580], § 255), and is well taken because such a motion requires a case made and yet there was none. (Altmark v. Haimowitz, 55 Misc. Rep. 195 ; Harris v. Gregg, 4 App. Div. 615 ; Davis v. Grand Rapids Fire Ins. Co., 5 id. 36; Nichols N. Y. Pr. 2656.) This motion cannot be regarded as made on the minutes. (Harris v. Gregg, supra.) And, as is pointed out in David Case (supra), hów without a case can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or if offered at the trial it fairly might have changed the result thereof.

• The order is reversed, with costs. .

Hirschberg, P. <T., Gaynoe, Rich and Miller> JJ., concurred.

Order of the Municipal Court reversed, with costs, with leave to renew the motion upon a case within twenty days.

Cases cited

Altmark v. Haimowitz 55 Misc. Rep. 195 N.Y. App. Term 1907-06-27 p. 190