BEACKMAR, J.
[ 1 ] Although the Supreme Court has no power in a case tried before the court without a jury to set aside the judgment and direct a new trial (Rosenquest v. Canary, 27 App. Div. 30, 50 N. Y. Supp. 111; Bosworth v. Kinghorn, 94 App. Div. 187, 87 N. Y. Supp. 983 (affirmed in 179 N. Y. 590, 72 N. E. 1139), yet that power seems plainly to be given to the Municipal Court by subdivision 7 of section 6 of the Municipal Court Code (Laws 1915, c. 279). That section of the Municipal Court Code, which grants power “to vacate * * * any process, mandate, judgment, order or final order, in furtherance of justice, for any error in form or substance” apparently plainly refers to errors found in the record itself, for such an error only can be an error in form or substance; and, if a judgment be vacated, the issues then remain undetermined, and a new trial must be had as matter of course. The last clause of that subdivision, which gives power to grant a new trial “upon any of the grounds for which a newr trial may be granted by the Supreme Court in an action pending therein, including the grounds of fraud and newly discovered evidence,” obviously has reference to some cause which is not error on the record, but which is outside the record of the trial, and which may be shown by affidavits, like, for instance, newly discovered evidence, fraud, or surprise. I think, therefore, that the court had power to make this order.
[2] The case was tried fully. The court, after hearing the evidence, rendered judgment for the plaintiff. The judgment was supported by the evidence, although it was conflicting and confused. Under these circumstances, 1 do not think that the order vacating the judgment should be affirmed, unless it affirmatively appears that there was some sufficient ground therefor. In this case I see nothing but a possible uncertainty in the mind of the justice which survived the pronouncement of the judgment. While I uniformly uphold the decision of a trial judge selling aside the verdict of a jury and ordering a new trial, unless obviously erroneous, I do not approve the action of a trial court in vacating a judgment rendered by himself, unless for good cause made apparent to the appellate court.
The order should be reversed, and the judgment reinstated, with $10 costs.
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