Majority
p. 789(24 Misc. Rep. 742.) MOSES et al. v. HARGROVE. (Supreme Court, Appellate Term. July 27, 1898.) Argued before BEEKMAH, P. J., and GHLDERSLEEVE and G-IEGrERICH, JJ.
Headnote
Appealable Orders.No appeal lies from an order of the municipal court granting a motion for a new trial on the ground of surprise and newly-discovered evidence.
Appeal from Seventh district court.
Action by Fannie Moses and another against Patrick H. Hargrove. From an order granting a motion for a new trial on the ground of surprise and newly-discovered evidence after a judgment dismissing the complaint, defendant appeals.
Appeal dismissed.
Samuel F. Hyman, for appellant.
Max Moses, for respondents.
We are of opinion that an appeal does not lie to this court from the order in question, inasmuch as no statutory authority for such an appeal can be discovered; and it is only by virtue of some statutory provision that this court can entertain any appeal from judgments or orders rendered in the municipal courts. It is claimed that such jurisdiction is conferred upon us under the provisions of chapter 748 of the Laws of 1896. That statute, however, seems to authorize an appeal only from two classes of orders, viz.: First, from orders opening default and setting aside, vacating, or modifying judgments entered upon such defaults; second, from ■orders granting motions for a new trial, made for the causes specified
p. 790
in section 999 of the Code of- Civil Procedure, The order in question does not come under either class. There was no default, and it has-been held that a motion for a new trial, under section 999 of the Code, cannot be entertained on the ground of surprise (Argali v. Jacobs, 56 How. Prac. 167, affirmed 21 Hun, 114 ), nor can such a motion be made under that section on the ground of newly-discovered evidence. 'In this view of the law, we therefore feel constrained to dismiss the-appeal.
Appeal dismissed, with costs.