Moses v. Hargrove

Appellate Terms of the Supreme Court of New York

Moses v. Hargrove

24 Misc. 742, 53 N.Y.S. 789

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1898

StatusPublished

This text of 24 Misc. 742 (Moses v. Hargrove) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moses v. Hargrove, 24 Misc. 742, 53 N.Y.S. 789 (N.Y. Ct. App. 1898).

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Opinion

Per Curiam.

We are of opinion that an appeal does not he to this court, from the order in question, inasmuch as no statutory authority for such an appeal can be discovered; and it is only by virtue of some statutory provision that this court can entertain any appeal from judgments or orders rendered in the Municipal Courts. It is claimed that such jurisdiction is conferred upon us under the provisions of chapter 748 of the Laws of 1896. That statute, however, seems to authorize an appeal only from two classes of orders, viz.: First, from orders opening default and setting aside, vacating or modifying judgments .entered upon such defaults; Second, from orders granting motions for a new trial made for the causes specified in section 999 of the Code of Civil Procedure.

The order in question does not come under either class. There was no default, and it has been held that a motion for a new trial, under section 999 of the Code, cannot be entertained on the ground of surprise (Argall v. Jacobs, 56 How. Pr. 167; affirmed, 21 Hun, 114), nor can such a motion be made under that section on the ground of newly-discovered evidence.

In this view of the law, we, therefore, feel constrained to dismiss the appeal. Appeal dismissed, with costs.

Present: Beekman, P. J.; Gildersleeve and Giegerich, JJ.

Appeal dismissed, with costs.

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Per Curiam.

We are of opinion that an appeal does not he to this court, from the order in question, inasmuch as no statutory authority for such an appeal can be discovered; and it is only by virtue of some statutory provision that this court can entertain any appeal from judgments or orders rendered in the Municipal Courts. It is claimed that such jurisdiction is conferred upon us under the provisions of chapter 748 of the Laws of 1896. That statute, however, seems to authorize an appeal only from two classes of orders, viz.: First, from orders opening default and setting aside, vacating or modifying judgments .entered upon such defaults; Second, from orders granting motions for a new trial made for the causes specified in section 999 of the Code of Civil Procedure.

The order in question does not come under either class. There was no default, and it has been held that a motion for a new trial, under section 999 of the Code, cannot be entertained on the ground of surprise (Argall v. Jacobs, 56 How. Pr. 167; affirmed, 21 Hun, 114), nor can such a motion be made under that section on the ground of newly-discovered evidence.

In this view of the law, we, therefore, feel constrained to dismiss the appeal. Appeal dismissed, with costs.

Present: Beekman, P. J.; Gildersleeve and Giegerich, JJ.

Appeal dismissed, with costs.

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Bluebook (online)

24 Misc. 742, 53 N.Y.S. 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moses-v-hargrove-nyappterm-1898.

Opinion

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