Hart v. Coltrain , 24 Wend. 13 ( 1840 )

By the Court,

Bronson, J.

On a second trial of this action, see 19 Wendell, 378, the defendant obtained a verdict, and the plaintiffs took exceptions. The plaintiffs, among other things, objected that the judge of the court of probates *had no jurisdiction to order a sale [ *15 ] of the real estate, because it did not appear that the administrator made and presented to the judge an account of the personal estate and debts of the intestate. 15 Wend. 450. 19 id. 334. 20 id. 241. By way of answer to this objection, the defendant has, since the trial, produced an exemplified copy of an affidavit made by the administrator before the judge of the court of probates, on the day the sale was ordered; and he insists, that this affidavit, in connection with the matters proved on the trial, shows that such an account was presented as would give the judge jurisdiction to order a sale.

A motion for a new trial, on a case made, is addressed to the sound discretion of the court; and where the party relies on some defect in the proofs, which is afterwards supplied by evidence which could not have been controverted had it been produced at the proper time,' and the court see that a new trial could be of no use, the motion will be denied. Bu,rt v. Place, 4 Wendell, 597, and cases cited. But this rule does not apply to a hill of exceptions, and we cannot look into the affidavit.

New trial granted.