
    William M. Rosenthal, Appellant, v. The Bell Realty Company, Respondent.
    (Supreme Court, Appellate Term,
    March, 1907.)
    New trial: Right to remedy in general — Discretion of court; Grounds — Newly discovered evidence — Nature and sufficiency of evidence discovered; Proceedings to procure new trial — Bill of exceptions, case, or statement of facts — Necessity for case.
    Where, upon the trial of an action for work, labor and services and materials furnished, defendant claims that the work was ordered through a third person who had been paid in full but who was not sworn upon the trial, and who, plaintiff claims, was simply his agent without authority to receive payment; and where, upon defendant’s motion for a new trial on the ground of newly discovered evidence, defendant excuses the absence of the third person whose affidavit used on the motion shows that he secured the order from the defendant; that he bought the material and did the work in connection with the plaintiff and was financially interested in the transaction, and paid the plaintiff for the materials furnished and work and received a receipted bill which was turned over to defendant, the materiality of the testimony is apparent; and its probative force can be much better determined by a trial court than by a reading of the affidavits; and the motion for a new trial should be granted.
    A motion for a new trial on the ground of newly discovered evidsnee may be made, in the absence of objection, upon the pleadings and affidavits; and an objection that a settled case is necessary under section 997 of the Code of Civil Procedure cannot be raised-for the first time upon appeal from the order entered on such motion.
    
      In the 'absence of an apparent abuse, the discretion of the court in granting a motion 'for a new trial on the ground of newly dis covered evidence will not he disturbed. ■ -
    Appeal by the plaintiff from an order of the Municipal Court of the city of Hew York, seventh district, borough of Manhattan, granting a new trial on the ground of newly discovered evidence.
    Marks & Marks, for appellant.
    Bennett E. Siegelstein, for respondent.
   Hendrick, J.

The action was for work, labor and services and material furnished. It was claimed by the defendant on the trial that the work was ordered through one Max Cohen, and that the defendant had paid said Max Cohen in full therefor, and in substance that there were no contractural relations known to defendant between the plaintiff and defendant. The plaintiff, on the other hand, claimed that Max Cohen was the plaintiff’s agent simply, and that he had no authority to receive payment for the work, labor and services and materials rendered. Max Cohen was not a witness on the trial, and the affidavits upon which the motion for a new trial was based excuse his absence. Cohen’s own affidavit used on the motion for a new trial shows that he was an important and material witness for the defendant. He states that he secured the order from the defendant; that he bought the material and did the work in connection with the plaintiff, and was financially interested in the transaction, and that the plaintiff was to receive only a commission; that he received payment for the goods and'paid the plaintiff for the material furnished, whereupon ho received a receipted bill which was turned over to the defendant. He also states that the plaintiff was paid for the material and work. The materiality of this testimony is apparent. Its probative force can be much better determined by a trial court than by the reading of affidavits. The appellant objects that the motion should have been denied in the absence of a settled -case. This undoubtedly is the practice in the Supreme Court, but the proper place to make that objection (if it be a valid objection in the Municipal Court) was upon the. argument of the motion. The objection is taken too late on appeal. The court has power to entertain and decide a motion for a new trial on the ground of newly discovered evidence upon the pleadings and affidavits, in the absence of a settled case, where no objection is made on the argument-of the motion that a settled' case is necessary under section 997 of the Code of Civil Procedure. Failing to object at that time, appellant waived the objection, and it cannot be raised for the first time upon the appeal. Russell v. Randall, 123 N. Y. 436; McIver v: Halen, 50 App. Div. 441; Bentleon v. Meier, 81 Hun, 162. It is also contended-by the appellant that the defendant knew of the existence of the witness and of the relevancy of the alleged newly discovered evidence before the trial, and that,' therefore, the motion should have been denied. The facts in relation thereto are in dispute; and, as these motions are largely addressed to the discretion of the justice hearing the motion, the exercise of that discretion will not be disturbed by an appellate tribunal unless there has been an apparent abuse of it which does not appear in this case.

We do not decide on this appeal whether or not a printed case is necessary in the Municipal Court upon which to base a motion for a new trial on the ground of newly discovered evidence, preferring to base our decision on the absence of a timely objection to the hearing of the motion on affidavits.

The order appealed from should be affirmed, with costs.

Gtldersleeve and Davis, JJ., concur.

Judgment affirmed, with costs.  