11 Misc. 357 | New York Court of Common Pleas | 1895
The reversal of the order appealed from is sought solely on the ground that the court below had no authority to make the same. Under these circumstances, Ave think the order should be reviewed in this court Russell v. Randall, 123 N. Y. 436, 438, 25 N. E. 931. It is urged by the appellant that the court below had no power to entertain the motion, because it was not made upon a case proposed and settled. The rule must be regarded as well settled that, where a motion for a new trial is based upon the ground of newly-discovered evidence, a case must be made, and the motion will not be heard upon affidavits only. Code Civ. Proc. § 997;
There is no suggestion here that a case was made, and was settled and signed by the trial judge, in conformity with the general rules of practice (in fact, there was no signature at all of the trial judge); nor that the appellant consented to a settlement of a case; nor that the appellant consented to have the motion heard upon the papers which were read in support of the motion. In the absence of either of these elements, we conclude, in the light of the above-cited provisions of the Code, the general rules of practice (rules 32-34), and the decisions construing the same, that the court below had no authority to entertain the motion, and hence the order was unauthorized. In arriving at this conclusion, we deem it meet and proper to state that we have not overlooked the dictum in Russell v. Randall, 123 N. Y. 438, 439, 25 N. E. 931, that the necessity for a history of the proceedings must appear to the court; but that we