
    David Boyd, as Administrator, Appellant, v. Robert Boyd, Respondent.
    (New York Common Pleas—General Term,
    February, 1895.)
    An order of the City Court granting a new trial on the ground of newly-discovered evidence is reviewable in the Court of Common Pleas where a reversal thereof is sought solely on the ground of want of power of the court to make it.
    In the absence of a case settled and signed by the trial judge, or of a consent by the opposing party to the settlement of a case or to the hearing of the motion on.the pleadings and affidavits,. the court has no authority to entertain a motion for a new trial on the ground of newly-discovered evidence.
    
      Boyd v. Boyd, 9 Misc. Rep. 161, reversed.
    Appeal by the plaintiff from an order of the General Term of the City Court, affirming an order granting a new trial to the defendant on the ground of newly-discovered evidence.
    This action was brought upon a judgment. The defense was payment and the action resulted in a direction by the court at Trial Term of a verdict in favor of the plaintiff. Thereafter the defendant moved at Special Term, before the same judge who had presided at the trial, for a new trial on newly-discovered evidence, which motion was granted, and upon appeal to the General Term of the City Court the order entered thereon was affirmed, from which order of affirmance the plaintiff has appealed.
    The other facts pertinent to the question discussed’ are stated in the opinion.
    
      Ddvxj/rd W. S. Johnston, for appellant.
    
      Henry Daily, Jr., for respondent.
   Giegerich, J.

The reversal of the order appealed from is sought solely on the ground that the court below had no authority to make the same. Under these circumstances wé think the order should be reviewed in this court. Russell v. Randall, 123 N. Y. 436, 438.

It is urged hy the appellant that the court below had no power to entertain the motion because it was not made upon a case proposed and settled.

The rule must be regarded as well settled that where a motion for a new trial is based upon the ground of newly-discovered evidence a, case must be made, and the motion will not be heard upon affidavits only. Code Civ. Proc. § 997 ; Anonymous, 7 Wend. 331; Sproul v. T. R. F. Ins. Co., 1 Lans. 71; Leavy v. Roberts, 8 Abb. Pr. 315 ; Warner v. W. T. Co., 5 Robt. 499; Russell v. Randall, 30 N. Y. St. Repr. 452; 123 N. Y. 436; Michel v. Colegrove, 46 N. Y. St. Repr. 899; Holmes v. Evans, 37 id. 369; Thayer Mfg. Co. v. Steinau, 58 How. Pr. 315 ; Bantleon v. Meier, 81 Hun, 162; 2 Rumsey’s Pr. 413 ; Baylies N. T. App. 524.

Section 997 of the Code provides that where’ a party intends to move for a new trial of an issue of fact “ he must, except as otherwise prescribed by law, make a case, and procure the same to he settled and signed by the judge or referee by or before whom the action was tried, as prescribed in the general rules of practice.” We have not been referred to nor are wé aware of any other provision of law, and we, therefore, conclude that the above are the only ones which apply to the question under consideration.

These statutory provisions are declaratory of the practice as it existed before either Code went into effect; and it was held in Bantleon v. Meier, supra, that they are imperative, and that there was no provision of law which relieved a motion of this character from the operation of these provisions of the Code, unless, as was the case - in Russell v. Randall, supra, the motion was heard without objection upon the pleadings in the action and the-affidavits of the parties relating to the history of the trial.

In the case before us the appellant, at the very outset, took the same position as contended for by him, upon this appeal, and maintained it throughout the' entire proceeding in the court below; and when the motion came on for hearing he filed an affidavit protesting against the hearing of the motion on the ground, among others, that it was not made upon a case prepared and settled in conformity with the provisions of section 997 of the Code.

It thus clearly appears that the appellant, at all times, insisted upon his legal rights, which he did not, in our opinion, waive for the reason assigned by the General Térm of the court below upon affirming the order, viz., that the appellant did not dispute, and the judge who tried the cause asserted, the correctness of the transcript of the entire evidence and proceedings taken at the trial, which formed part of the motion papers, this being deemed “ a sufficient settlement under the peculiar circumstances of the case.” ' ,

There is no suggestion here that a case was made and was settled and signed by the trial judge in conformity with the general rules of practice (in fact theré was no signature at all of the trial judge); nor that the appellant consented to a settlement of a case ; nor that the appellant consented to have the motion heard upon the papers which were read in support of the motion.

In the absence of either of these elements, we conclude, in the light of the above cited provisions of the Code, the general rules of practice (rules 32-34) and the decisions construing the same, that the court below had no authority to entertain the motion, and hence the order was unauthorized.

In arriving at this conclusion we deem it meet and proper to state that we have hot overlooked the dictum in Russell v. Randall, 123 N. Y. 438, 439, that the necessity for a history of the proceedings must appear to the court; but that we base our decision solely upon the requirements of section 997 of the Code, which, in our opinion, alone govern applications for a new trial upon newly-discovered evidence.

There were other points urged by the appellant, but in view of the opinion above expressed we are dispensed from consideration of the same.

For these reasons the order appealed from should be reversed; with costs, but with leave to renew upon payment of the costs of both appeals.

Bookstaver and Bischoff, JJ., concur.

Order reversed, with leave to renew on payment of costs of both appeals.  