
    David Boyd, as Administrator, etc., App’lt, v. Robert Boyd, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed December 17, 1894.)
    
    Appeal—First instance.
    An objection that a motion for a new trial, made on a transcript of the entire evidence and proceedings on the trial, should have been made on a case settled, cannot raised for the first time on appeal.
    Appeal from a motion granting a new trial.
    
      Geo. A. Taylor, Jr., for app’lt; Henry Daily, Jr., for resp’t.
   Van Wyck, J.

The plaintiff’s alleged cause is upon a judgment previously obtained by his intestate against this defendant while defendant’s alleged defense was payment of the same to said intestate. At trial, when defendant offered to make proof of such payment, he was met with a judgment roll filed in an action in the superior court, wherein he was plaintiff, and the plaintiff herein was one of the defendants therein, by which it was adjudged, by the fifteenth and seventeenth findings of fact, that the very judgment herein sued .upon “is still unpaid; ” and it was held that he was estopped by such judgment from making proof of such payment, and of course the verdict was directed for plaintiff. Thereafter this defendant, as the plaintiff in the superior court action, applied to and obtained from that court an annulment of those two findings of fact, after notice to this plaintiff as one of the defendants therein, and then moved at ’the special term of this court, before the very justice who had presided at the trial of this cause, for a new trial on the ground that such annulment set at large the estoppel which existed at trial, and prevented him from proving such payment of the judgment. This motionfor new trial was granted upon payment of all costs to date, thus applying the rule as laid down.in Smith v. Frankfield, 77 N. Y. 414, that if a judgment is rendered upon the strength of a judgment in some other action, which is afterwards reversed, such reversal is sufficient ground for a new trial, but should be on terms. This appeal is from such order granting new trial, and appellant contends that it should be reversed because the motion was not made on a case made and settled. The record shows that the motion was heard and determined upon two affidavits, the findings of fact by the superior court, the subsequent order of such court striking out the two findings which raised the estoppel, and a transcript of. the entire evidence and proceedings as taken on the trial. Assuming, not conceding, that this was a motion that should have been made upon a case settled, still, the appellant not disputing and the judge, who also tried the cause, asserting, the correctness of this transcript of the entire evidence and proceedings taken at trial, the same will be deemed a sufficient settlement under the peculiar circumstances of this case. The defendant certainly should have a new trial, and the order granting him such is affirmed, with $10 costs.

All concur. ■  