
    Morris Tarder, Appellant, v. Bernard Bezozi, Respondent.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Appellate Term — Its power to grant a new trial in the Municipal Court for newly discovered evidence — Code C. 3?., § 3057.
    The expression “ error of fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice,” as used in Code Civ. Pto., § 3057, relative to the grounds of appeal in justice’s court, does not refer to any error or mistake of the justice in finding the facts, but relates to errors of fact affecting the regularity and validity of the proceedings, and not appearing on the record, such as death, coverture or infancy.
    
      Semble, that the Appellate Term has no statutory authority to grant a new trial for newly discovered evidence in an action brought in the Municipal Court of the city of New York where the appeal is from the judgment, and will not seek authority to relieve the defeated party where bis affidavits for the new trial present evidence which is merely cumulative.
    Appeal from judgment rendered by the justice of the Municipal Court of the city of ¡New York, fifth district, borough of Manhattan, in favor of the defendant.
    David Steckler, for appellant.
    Engel, Engel & Oppenheimer (J. B. Engel, of counsel), for respondent.
   Clarke, J.

This is an action for the conversion of one regulator clock. The plaintiff claimed deposit of the clock with the defendant as security for a loan. The defendant claimed an absolute sale. Upon the trial there was a dispute of fact upon conflicting evidence. There are no exceptions urged before us, and, therefore, with the court’s determination, based upon conflicting testimony, we will not interfere.

The appellant, however, with his appeal tenders certain affidavits and .upon them asks this court to order a new trial upon the ground of newly-discovered evidence. He cites section 3051 of the Code of Civil Procedure as authority therefor: “ When an appeal is founded upon an error of fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice, the court may determine the matter upon affidavits or, in its discretion, upon the examination of witnesses, or in both methods.” Said section does not apply because there was no error of fact in the proceedings not affecting the merits of the action and not within the knowledge of the justice.

The term “ error of fact,” as here used, does not refer to any error or mistake of the justice in finding the facts. When applied to proceedings in error it means such facts as affect the regularity and validity of the proceedings on the record, and still do not appear on it, such as the death, coverture or infancy of one of the parties. Adsit v. Wilson, 7 How. Pr. 64. Further, the affidavits presented do directly affect the merits. They are offered for the very purpose of establishing the proposition, that the judgment was erroneous on the merits, by tendering proof in support of the plaintiff and against the defendant.

Irrespective of said section said affidavits are presented to this court to obtain an order for a new trial upon the ground that the Municipal Court is limited in its jurisdiction to the consideration of motions for a new trial upon the grounds set forth in section 999 of the Code of Civil Procedure, and this motion is not one therein set forth, and, therefore,. to obtain justice appellant is compelled to come here. Mr. Justice Bischoff, speaking for this court in Flanagan v. Callanan, 22 Misc. Rep. 139, said: “With regard to the questions of the appellants’ practice, there seems to be no statutory provision authorizing this court to grant a new tidal upon newly-discovered evidence where the appeal is taken from the judgment and, generally, evidence is to be received upon appeal only for the purpose of sustaining a judgment, never for the purpose of reversing it. * * * It would seem also that the justice below would have been without power to grant the motion for a new trial upon this ground, since, after judgment was rendered upon litigated issues, his jurisdiction extended only to a motion made upon the grounds specified in section 999 of the Code of Civil Procedure.” It is true the opinion proceeded: “It may be that this court should seek authority to relieve a party thus situated in a proper case,” and we do not now pass upon that proposition, for we are of opinion that the case at bar is not one in which we should seek that authority. The evidence tendered is at most cumulative and no satisfactory reason is offered why it was not produced upon the trial and, if tendered, it is not of such a character that we can see that it would have altered the result.

Judgment affirmed, with costs, and motion denied, with ten dollars costs.

Bisohoef, P. J., and Levewtritt, J., concur.

Judgment affirmed, with costs. Motion denied, with ten dollars costs.  