Opinion
June 4, 1909.
James A. Sheehan, for the appellants.
No appearance or brief for the respondent.
The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly-discovered evidence. This appeal lies as from a judgment (Mun. Ct. Act [Laws of 1902, 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 Davis' Case ( supra), how 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.J., GAYNOR, 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.