Opinion
April Term, 1896.
Order of County Court reversed, with ten dollars costs and disbursements, without prejudice to plaintiff's making a motion in such court for a new trial upon the proper papers. —
If the motion for a new trial is to be deemed made upon the ground of newly-discovered evidence, it is clear that it should have been made upon a case. Bantleon v. Meier (81 Hun, 162) is a plain authority to that effect. The appellant urged that objection upon the motion, and it seems to us to have been well taken. If we consider the motion made upon the ground of surprise, a case was not needed. Such a motion may be made without a case and upon affidavits. (Code Civ. Proc. § 998.) But the affidavit upon which the motion is founded does not present facts sufficient to warrant the granting of a new trial upon that ground. A careful reading of the affidavit will disclose that fact, and an analysis of its defects is not necessary. ( Matter of Ramsdell, 20 N.Y. St. Repr. 446-451; Anderson v. Markeet N. Bank, 66 How. Pr. 8; Jackson ex dem. Horton v. Roe, 9 Johns. 77; Hatfield v. Macy 52 How. Pr. 193.) Moreover, the motion was not granted on any such grounds. The opinion of the county judge shows that upon the trial before him. Plaintiff had sought to recover upon the ground that he and defendant were tenants in common of the crops sued for. That claim the county judge had overruled and nonsuited the plaintiff. Upon the argument of this motion he seems to have reached the conclusion that they were tenants in common, and that, therefore, the "plaintiff actually had a cause of action which had miscarried." Upon that ground he grants a new trial. In effect that is granting a new trial for the reason that upon all the evidence the nonsuit was improper. Clearly in such a case the motion could be made only upon a case and exceptions. (Code, § 997.) This case cannot be considered as a motion on the judge's minutes, because such a motion must be made at the time of the trial. (Code, § 999.) And at the close of the trial such a motion was not made, but, on the contrary, time was given the plaintiff to make a case. The appellant urged those objections on the motion, and they should have prevailed. The order of the County Court should be reversed, with ten dollars costs and disbursements, without prejudice to plaintiff's making a motion in the County Court for a new trial upon the proper papers. All concurred.