
    SUPREME COURT.
    Aaron Cooke agt. Gideon D. Passage.
    The 38th section of 2 Revised Statutes, page 309, authorizes the court to vacate a judgment in ejectment and grant a new trial, &c., on certain terms. Sdd, that the same section applies to a judgment in an action to recover the possession of real estate under the code.
    
      Allegany Special Term, April, 1850.
    
    
      Motion for new trial. The plaintiff brought an action under the code, to recover the possession of real estate contracted to be sold by him to the defendant, alleging that the defendant had failed to comply with the conditions of his contract of purchase. The defendant denied the breach of the agreement, and had a verdict in Ms favor.
    The plaintiff now asks that the judgment on the verdict be vacated and a new trial granted; or for such other relief, &c., and cites Revised Statutes, vol. 2, page 309, § 38, relating to the action of ejectment, as follows: “ The court in which such judgment shall be rendered, at any time, within three years thereafter, upon the application of the party against whom the same was rendered, Ms heirs and assigns, and upon payment of ah costs and damages recovered thereby, shah vacate such judgment, and grant a new trial in such cause.”
    The defendant objected that the judgment had not yet been perfected, and that the statute cited did not apply to an action under the code.
    E. Faulkner, for plaintiff.
    
    J. A. Vanderlip, for defendant.
    
   Marvin, Justice.

—Held, that the section of the Revised Statutes was applicable to such an action under the code, and ordered that the plaintiff be allowed to perfect the judgment upon the verdict unless the defendant does so in ten days; and that when perfected the judgment A all thereupon be vacated and a new trial granted, without further order of court.  