
    RHODES v. UNION RY. CO.
    (Supreme Court, Appellate Term.
    March 5, 1908.)
    Courts—Municipal Courts—New Trial—Proceedings to Procure—Case.
    Under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 255, providing that the court may grant or deny a motion for new trial on the ground of fraud or newly discovered evidence, and that from the order an appeal will lie, an order granting a new trial, not made upon a case settled, is void.
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by Margaret A. Rhodes against the Union Railway Company. From an order granting a motion to set aside a verdict entered in favor of defendant, and ordering a new trial on the ground of newly discovered evidence, defendant appeals. Order reversed, and judgment reinstated.
    See 52 Mise. Rep. 501, 102 N. Y. Supp. 510.
    Argued before GILDERSLEEVE, P. J., and BISCHOFF and MacLEAN, JJ.
    James L. Quackenbush (William E. Weaver, of counsel), for appellant.
    Tierney & Conlon (Frank I. Tierney, of counsel), for respondent.
   PER CURIAM.

The order appealed from was made upon a motion pursuant to section 255 of the Municipal Court act (Laws 1902, p. 1563, c. 580), upon the pleadings, a portion of the testimony, and affidavits, on the ground of newly discovered evidence, and because of fraud. Under the decision of this court in Altmark v. Haimowitz, 55 Misc. Rep. 195, 105 N. Y. Supp. 205, the order of the court below, not having been made upon a case settled, was improper, and therefore should be reversed, and the judgment reinstated.

Order reversed, with costs, and judgment reinstated.  