Preleson v. Ali — 142 Misc. 296

Majority

p. 296

Marcel Preleson, an Infant, by Andrew Preleson, His Guardian ad Litem, Plaintiff, v. Frank Ali, Defendant.

Supreme Court, Niagara County,

December 22, 1931.

Frank J. Maldiner, for the plaintiff.

John F. McNulty, for the defendant.

Motion No. I is a motion for a new trial on the ground that the verdict of the jury was against the weight of evidence.

Motion No. 2 is a motion for a new trial made on the ground of newly-discovered evidence.

Both of these motions were made and heard at a Special Term by a justice who did not preside at the trial and after the term at which the case was tried had been terminated.

Motion No. 2 must be denied because there is not sufficient shown to meet the requirements on which a motion may be granted on the ground of newly-discovered evidence. (New Amsterdam Casualty Co. v. Beardsley, 123 Misc. 292 , and cases therein cited.)

Both motions must be denied because no case has been signed and settled and such making and settling of a case is a prerequisite

p. 297

to the hearing of such motions at Special Term and not at the term at which the action was tried. (Civ. Prac. Act, §§ 549, 552; Rules Civ. Prac. rule 221.)

Orders in accordance with the foregoing are to be submitted to me for signature.

Cases cited

New Amsterdam Casualty Co. v. Beardsley 123 Misc. 292 N.Y. City Ct. 1924-05-27 p. 296