Scott v. Smith , 117 N.Y.S. 455 ( 1909 )

Jenks, J.:

The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly-discovered evidence. Tins appeal lies as from a judgment (Mun. Ct. Act [Laws of 19013, chap. 580], § 255), and is well taken because such a motion requires a case made and yet there was none. (Altmark v. Haimowitz, 55 Misc. Rep. 195; Harris v. Gregg, 4 App. Div. 615; Davis v. Grand Rapids Fire Ins. Co., 5 id. 36; Nichols N. Y. Pr. 2656.) This motion cannot be regarded as made on the minutes. (Harris v. Gregg, supra.) And, as is pointed out in David Case (supra), hów without a case can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or if offered at the trial it fairly might have changed the result thereof.

• The order is reversed, with costs. .

Hirschberg, P. <T., Gaynoe, Rich and Miller> JJ., concurred.

Order of the Municipal Court reversed, with costs, with leave to renew the motion upon a case within twenty days.