
    SCOTT v. SMITH et al.
    (Supreme Court, Appellate Division, Second Department.
    June 4, 1909.)
    Courts (§ 189)—Municipal Courts—Procedure—New Trial—Case Made.
    A motion for a new trial for newly discovered evidence, made under Municipal Court Act (Laws 1902, p. 1563, c. 580) § 255, in the Municipal Court of the City of New York, is one requiring a case made, and cannot be regarded as made on the minutes.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.]
    Appeal from Municipal Court, Borough of Brooklyn, Second District.
    Action by David Scott against Emily I. Smith and another. From an order of the Municipal Court of the City of New York granting a new trial, defendants appeal.
    Reversed.
    Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, RICH, and MILLER, JJ.
    James A. Sheehan, for appellants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   JENKS, J.

The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly discovered evidence. This appeal lies as from a judgment (section 255, Municipal Court Act [Laws 1902, p. 1563, c. 580]), and is well taken, because such a motion requires a case made and yet there was none (Altmark v. Haimowitz [Appellate Term] 55 Misc. Rep. 195, 105 N. Y. Supp. 205; Harris v. Gregg, 4 App. Div. 615, 38 N. Y. Supp. 844; Davis v. Grand Rapids Fire Ins. Co., 5 App. Div. 36, 39 N. Y. Supp. 71; Nichols’ New York Practice, p. 2656). This motion cannot be regarded as made on the minutes. Harris v. Gregg, supra. And, as is pointed out in Davis’ Case, supra, how, without a case, can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or, if offered at the trial, it fairly might have changed the result thereof.

The order is reversed, with costs. All concur.  