Quinlan v. Stratton — 7 N.Y.S. 786

Majority

p. 786

Quinlan v. Stratton et al.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

"New Teial—Sufficiency of Affidavits.

A new trial will not be granted on motion, based only on affidavits which assign, as grounds that the decision was not made within the prescribed time, and that defendants have a good defense on the merits, which was summarily disposed of without having been fully and fairly presented to the court.

Appeal from special term, Queens county.

Action by John J. Quinlan against Emily A. Stratton and Samuel W. Judson to foreclose amortgage. Judgment was rendered for plaintiff, from which an appeal was taken, but defendants, before they had settled their proposed case, moved for a new trial. No newly-discovered evidence was alleged, nor was the motion based on exceptions taken, or on the minutes of the court, or on any ground other than the “affidavits, the complaint and answers, and such other papers as it may be necessary to refer to in the action for a new trial.” The grounds assigned in the affidavits of the defense are that the decision was not made within the prescribed time, and that defendants have a good defense on the merits, which was summarily disposed of without having been fully and fairly presented to the court. Prom an order denying the motion defendants appealed. The notice of appeal did npt designate the order appealed from other than “an order made at a special term of this court, held in the county of Kings, dated the 26th day of January, 1889, and filed in the office of the clerk of the county of Queens by the plaintiff on the 7th day of February, 1889.”

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Samuel W.Judson, for appellants. Frank N. O'Brien, (A. H. Dailey, of counsel,) for respondent.

This is an action for the foreclosure of a mortgage, and upon the trial the plaintiff had judgment. The defendants appealed from the judgment, and made and served a proposed case. Before the case was settled, the defendants moved, upon affidavits which are now printed among the papers submitted to us, for a new trial, without disclosing any grounds for the motion. The motion was denied, and the defendants have, appealed from the order of denial. The affidavits make no case for a new trial, and the practice was irregular. The order should be affirmed, with $10 costs and disbursements.