
    Carolina Stiasny, as Committee of Albert E. Stiasny, a Lunatic, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Motion for a new trial because of newly-discovered evidence — what is a “ case ” within Code Giv. Proc. § 997.
    A record of the trial of an action to recover damages for personal injuries, presented on a motion for a new trial on the ground of newly-discovered evidence, which bears the heading “ Bill of Exceptions,” but is stipulated by the attor neys for the respective parties to be a true copy of the case and exceptions, and with their consent is ordered on file by the justice who presided at the trial of the action, is a “case” within the meaning of section 997 of the Code of Civil Procedure providing that such a motion must be made upon a “ case."’ Van Brunt, P. J., dissented.
    Appeal by the plaintiff, Carolina Stiasny, as committee of Albert E. Stiasny, a lunatic, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1901, denying the plaintiff’s motion for a new trial upon the ground of newly-discovered evidence.
    
      Franklin Pierce, for the appellant.
    
      Charles F. Brown, for the respondent.
   Patterson, J.:

On the trial of this action, which was brought to recover damages for personal injuries claimed to have been sustained by Albert E. Stiasny through the negligence of the defendant’s servants, a verdict was rendered for the defendant, and, upon appeal to this court, that judgment was affirmed. At the time of the trial, Albert E. Stiasny was a lunatic in charge of a committee, and the action was brought in the name of such committee. Since the affirmance of the judgment Mr. Stiasny has been restored to sanity, and the plaintiff has moved for a new trial on the ground of newly-discovered evidence. That evidence consists of alleged material facts within the knowledge of Albert E. Stiasny, as to which he could not testify upon the trial because of his impaired mental condition. It is claimed that Mr. Stiasny is now in condition to testify to those alleged material facts, and that they are of such a character that if they were believed by a jury a different verdict would be authorized.

The motion for a new trial was denied at the Special Term, the court sustaining a preliminary objection taken by the defendant, namely, that the record presented as the foundation of the motion was insufficient, in that it does not comply with the requirements of section 99Y of the Code of Civil Procedure, which provides, among other things, that when a party intends to move for a new trial of an issue of fact he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed by the judge, justice or referee by or before whom the action was tried, as prescribed in the General Rules of Practice, and that the case must contain so much of the evidence and other proceedings upon the trial as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case.

The record presented to the court below on the present motion is called a bill of exceptions. It contains the evidence relating to the subject of the negligence of the defendant’s servants, out of which alleged negligence the plaintiff’s cause of action arose, but it does not contain evidence as to the mental condition of Mr. Stiasny at the time of the trial. The question now presented is whether what is called the bill of exceptions in this case is a case within the meaning of the section of the Code above cited.

It is noticeable that although the record of the trial presented on this motion bears the heading Bill of Exceptions,” yet it was treated by both parties to the action as a case and exceptions. It was stipulated between the attorneys for the respective parties that such record was a true copy of the case and exceptions on appeal in this action, and also that it might be ordered on file as and for the original case and exceptions on appeal as settled herein, and it was so ordered on file by the justice who presided at the trial of the action. What is a “ case ” under section 997 of the Code of Civil Procedure was considered in Hubbard v. Chapman (28 App. Div. 577), in which it was held that a “ case ” for which provision is made in the Code embraces a bill of exceptions; and following that . decision we must hold that the record presented on this motion to the court below was sufficient as a case to authorize the justice at Special Term to entertain and pass upon the motion. In that record is contained all the evidence upon the subject of the alleged negligence of the defendant’s servants. There is also -certified in that record and forming a part of it the charge of the judge to the jury, from which it appears that no issue was made with respect to the insanity of Mr. Stiasny. On the contrary, that was conceded. The only controversy was as to that insanity being incurable. The affidavits read by the plaintiff upon the motion point out wherein evidence now available will materially alter the aspect in which the case went to the jury. The justice at Special Term should have passed upon the merits of the application.

Deeming, as we do, the record sufficient to entitle the plaintiff to be heard upon the merits of the application, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term to be heard and decided upon the merits.

Ingraham, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting) :

I dissent, there never having been any case made, only a bill of exceptions,

Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term to be heard and decided upon the merits.  