Scott v. Smith

Appellate Division of the Supreme Court of New York

Scott v. Smith

133 A.D. 190, 117 N.Y.S. 455, 1909 N.Y. App. Div. LEXIS 2133

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1909

StatusPublished

Cited by1 cases

This text of 133 A.D. 190 (Scott v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scott v. Smith, 133 A.D. 190, 117 N.Y.S. 455, 1909 N.Y. App. Div. LEXIS 2133 (N.Y. Ct. App. 1909).

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Opinion

Jenks, J.:

The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly-discovered evidence. Tins appeal lies as from a judgment (Mun. Ct. Act [Laws of 19013, chap. 580], § 255), and is well taken because such a motion requires a case made and yet there was none. (Altmark v. Haimowitz, 55 Misc. Rep. 195; Harris v. Gregg, 4 App. Div. 615; Davis v. Grand Rapids Fire Ins. Co., 5 id. 36; Nichols N. Y. Pr. 2656.) This motion cannot be regarded as made on the minutes. (Harris v. Gregg, supra.) And, as is pointed out in David Case (supra), hów without a case can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or if offered at the trial it fairly might have changed the result thereof.

• The order is reversed, with costs. .

Hirschberg, P. <T., Gaynoe, Rich and Miller> JJ., concurred.

Order of the Municipal Court reversed, with costs, with leave to renew the motion upon a case within twenty days.

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Jenks, J.:

The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly-discovered evidence. Tins appeal lies as from a judgment (Mun. Ct. Act [Laws of 19013, chap. 580], § 255), and is well taken because such a motion requires a case made and yet there was none. (Altmark v. Haimowitz, 55 Misc. Rep. 195; Harris v. Gregg, 4 App. Div. 615; Davis v. Grand Rapids Fire Ins. Co., 5 id. 36; Nichols N. Y. Pr. 2656.) This motion cannot be regarded as made on the minutes. (Harris v. Gregg, supra.) And, as is pointed out in David Case (supra), hów without a case can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or if offered at the trial it fairly might have changed the result thereof.

• The order is reversed, with costs. .

Hirschberg, P. <T., Gaynoe, Rich and Miller> JJ., concurred.

Order of the Municipal Court reversed, with costs, with leave to renew the motion upon a case within twenty days.

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Bluebook (online)

133 A.D. 190, 117 N.Y.S. 455, 1909 N.Y. App. Div. LEXIS 2133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-smith-nyappdiv-1909.

Opinion

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