Majority
p. 833(34 Misc. Rep. 193.) PRAGER v. BORDEN’S CONDENSED-MILK CO. (Supreme Court, Appellate Term. February 25, 1901.) Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.
Headnote
L Courts—Municipal Judge—Jurisdiction—Opening Case for Newly-Discovered Evidence.An order of the justice of the municipal court, opening a case for newly-discovered evidence, was erroneous, since such justice has no jurisdiction to grant a new trial for newly-discovered evidence, and hence could not open the case for the admission of such evidence.
2. Bill op Particulars—Failure to Furnish—Dependant Prejudiced— New Trial Granted.
Where the defendant was prejudiced by being required to proceed to trial before the plaintiff had furnished a bill of particulars ordered by the court, a new trial will be granted.
Appeal from municipal court, borough of Manhattan, Eleventh district.
Action by Louis S. Prager, against the Borden’s Condensed-Milk Company. From a judgment in favor of the defendant, the plaintiff appeals.
Reversed.
Joseph L. Prager, for appellant.
Thomas M. Rowlette, for respondent.
A justice of the municipal court has no power to grant a new trial upon the ground of newly-discovered evidence. De Lemos v. Cohen, 28 Mise. Rep. 579, 59 N. Y. Supp. 498 . It was therefore improper to open the case for the purpose assigned, and the judgment appealed from must be reversed. The defendant, however, was seriously prejudiced by being required to proceed to trial originally before the plaintiff furnished the bill of particulars ordered by the court, and, after a consideration of the entire record, we are of the opinion that the ends of justice will be promoted by a new trial.
Judgment appealed from reversed, and new trial ordered, without costs to either party. All concur.