Majority
p. 339LANDES v. SALLIN. (Supreme Court, Appellate Term, First Department. May 7, 1914.) Argued April term, 1914, before GUY, PAGE, and WHITAKER, JJ.
Headnote
New Trial (§ 131[1] )—Municipal Court—Proceedings to Procure—Settled Case—Necessity.A motion for a new trial in the Municipal Court, based upon affidavits alone, was not fatally defective, because not made upon a settled case, where a settled case was before the trial court, and was included in the return on appeal, and which on examination satisfied the Appellate Term that the motion was properly granted.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 263-269: Dec. Dig. § 131.®]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Landes against Dora Sallin. Judgment for plaintiff vacated, and plaintiff appeals.
Affirmed.
Emil A. Klein, of1 New York City, for appellant.
Max B. Lesser, of New York City, for respondent.
This an appeal by the plaintiff from an order vacating a judgment rendered against the defendant upon the ground of fraud, perjury, and newly discovered evidence.
The only point worthy of consideration urged by the appellant is that the motion made in the lower court was based upon affidavits alone, and was not made upon a settled case. See Altmark v. Haimowitz, 55 Misc. Rep. 195 , 105 N. Y. Supp. 205 ; Rhodes v. Union Ry. Co., 108 N. Y. Supp. 949 . This objection would be fatal, if a settled case was not before the court; but a case has been made and settled,
p. 340
and is with the return upon this appeal, and from its examination we are satisfied that the motion in the lower court was properly granted. Technicalities must give way to substance, and we think that the interests of justice will be best subserved by affirming the order of the lower court, which granted a new trial.
Order affirmed, with costs to abide the event.
Cases cited
- Altmark v. Haimowitz 55 Misc. Rep. 195 p. 339