147 N.Y. 346 | NY | 1895
The appellant moves for an order directing that the return herein be transmitted to the Supreme Court, and that this case be remanded there, without prejudice to the appeal to this court heretofore taken, for the purpose of enabling him to move for a new trial on the ground of newlydiscovered evidence.
We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case for all general purposes still remains in the court of original jurisdiction. (People ex rel. Hoffman v.Board of Education,
The production in the court below of the return to this court on the motion for a new trial is manifestly unnecessary, as that motion is made on facts dehors the record.
If the Supreme Court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper.
The motion should be denied, without costs.
All concur.
Motion denied. *348