The Court were all of the opinion that the plaintiff’s papers in support of the motion were defective, in not containing an affidavit of the witnesses who, it was claimed, would give the additional evidence relied on, stating that they were ready to swear to the facts claimed to be newly discovered.
They therefore decided to affirm the order appealed from, upon that ground, without passing upon any other point.
Order affirmed, with costs.
The judges were not agreed whether the order was appealable or not. The chief judge delivered an opinion (published in 2 Abb. Pr. N. S. 102) to the effect that under the Code of Procedure, as amended in 1862, it was appealable. Davies, J., expressed the opinion that it was not appealable, citing Platt v. Monroe, 34 Barb. 291. And so it was afterward determined in Lawrence v. Ely, 38 N. Y. 42, where such motions were held to rest in the discretion of the court.