58 How. Pr. 420 | NY | 1879
We think that the papers upon which the application for a new trial in this action is founded do not establish facts which authorize the granting of the motion. *262
The application is made on the behalf of the defendant and of one Josiah Lockwood. The interest of Lockwood is stated to have been derived from one Byrnes, who, it is alleged, was the landlord of the premises under whom the defendant was in possession. The right of Lockwood is expressly controverted by the opposing affidavit, and it is alleged that Lockwood has no lawful title or claim, and that he is neither heir or assignee of the defendant nor of Byrne.
It is also shown by the affidavit that when the action was ready for trial the defendant withdrew his answer, and judgment was entered by his consent in open court. It is true the judgment record shows that by the direction of the court a verdict was found for the plaintiff. But without contradicting the record, it may be assumed from the affidavit, which is not controverted, that this was done by consent.
It also appears that the application is not made by the attorney of record, but by an attorney who has never been substituted in the place of the original attorney. The motion, then, is on behalf of a party whose interest in the premises is at least doubtful, in a case where consent has been given to the judgment, and by an attorney who is not shown to have had any authority. To say the least, it is very uncertain upon the papers what are the actual facts, and whether a case is made out for a new trial, within the statute: (2 R.S., 309, as amended by chap. 485 of the Laws of 1862.)
The defendant, or the party actually interested, had an opportunity to supply these defects by a renewal of the motion, as was authorized by the Special Term. This he has failed to do, and we think the order should be affirmed, with costs.
All concur.
Order affirmed. *263
