
    Hiram F. Henry, App’lt, v. Norman M. Allen, Resp’t.
    
      (Court of Appeals,
    
    
      Filed October 29, 1895.)
    
    1. Appeal—Motion for new trial.
    The pendency of an appeal in the court of appeals does not prevent a motion in the court below for a new trial on the ground of newly discovered evidence.
    2. Same.
    In such case, an order to transmit the return on appeal to the court below is unnecessary.
    
      John Q. Milburn, for motion; W. H. Henderson, opposed.
   Bartlett, J.

The appellant moves for an order directing that the return herein be transmitted to the supreme court, and that this case be remanded there, without prejudice to the appeal to this court heretofore taken, for the purpose of enabling him to move for a new trial on the ground of newly discovered evidence.

We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case for all general purposes still remains in the court oil original jurisdiction. People ex rel. Hoffman v. Board of Education, 141 N. Y. 86; 56 St. Rep. 560. In the above case we said : “In all matters pertaining to the appeal itself and to the proper hearing thereon this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of the appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.”

The production in the court below of the return of this court on the motion for a new trial is manifestly unnecessary, as that motion is made on facts dehors the record.

If the supreme court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper.

The motion should be denied, without costs.

All concur.

Motion denied.  