This is an action in tort for negligence arising out of a collision of motor vehicles. Defendant interposed a counter-claim. The jury rendered a verdict in favor of the defendant on the complaint, and in favor of the plaintiff on the counter-claim. Judgment was entered accordingly.
Thereafter, on plaintiff's motion, the verdict was vacated and a new trial granted on the ground of the existence of newly-discovered evidence. Defendant thereupon appealed from the order so made; and it is affirmed that what is denominated "newly-discovered" evidence is not such in fact and in law, and the action thus taken is therefore a palpable abuse of discretion. The retrial has not been had.
The challenged order does not take the category of a final judgment, and it is therefore not appealable. An appeal lies only from a final judgment. R.S. 1937, 2:27-349. Vide Kople v.Zalon,
The appeal is accordingly dismissed, with costs. *Page 599