Atkinson v. Truesdell , 57 Jones & S. 600 ( 1889 )

The Court held'(Ingraham, J., writing, Truax, J., concurring),

that as the records before the general term showed that the motion was made on a case, and was argued and decided on the merits, the objection that under § 1002 it could not have been made on a case, inasmuch as it was not made at the term at which the case was tried, or before the time in which the defendant could take an appeal from the judgment had expired, was untenable. The case of Forstman v. Schutling, 38 Hun, 485, distinguished.