
    Frederick Michel et al., App’lts, v. James B. Colegrove, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed July 5, 1892.)
    
    New trial—Newly discovered evidence—Practice.
    A motion to set aside a judgment and to suppress a deposition on the ground of newly discovered evidence must he made on a case and exceptions as well as affidavits setting forth the nature of such evidence.
    Appeal from an order of the special term, dated November 12, 1891, denying plaintiffs’ motion to set aside a judgment of the special term and suppress the deposition of a witness, with leave to renew on case and exceptions, in addition to affidavits.
    
      Henry Daily, Jr., for app’lts; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Gildersleeve, J.

This order denied the motion of plaintiffs to set aside the judgment of the special term herein, and to suppress the deposition of one George Battelson, with leave to renew the motion, so made, upon a case and exceptions, in addition to the affidavits, upon which alone the motion was made.

Plaintiffs’ motion was founded on affidavits setting forth the fact that since the entry of the judgment herein plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness; and plaintiffs asked to have said deposition suppressed and the judgment set aside, on this newly discovered evidence. The court held that such a motion should be made on a case and ■exceptions, as well as the affidavits setting forth the nature of the newly discovered evidence, and denied the motion, with leave to renew on such case.

We are of opinion that the court below correctly indicated the practice to be followed in such a case, and that the order was properly granted. Holmes v. Evans, 37 St. Rep., 369; 7 Wend., 331; Warner v. West. Tr. Co.. 5 Robt., 499; see, also, Russell v. Randall, 123 N. Y., 436; 34 St. Rep., 110.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dugro, J., concurs.  