
    John L. Harris, Resp't, v. David Gregg, as Committee, etc., App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. New trial—Case.
    Upon a motion made for a new trial upon the ground of surprise, a case is not needed, but the motion may be made upon affidavits.
    2. Same.
    A motion for a new trial upon the ground of newly discovered evidence must be made upon a case.
    3. Same.
    A motion for a new trial for the reason that, upon all the evidence, a nonsuit is improper, can be made only on a case and exceptions.
    Appeal from an order granting a motion for a new trial after a judgment in favor of defendant.
    J. W. Atkinson, for app’lt; Thomas O’Connor, for resp’t.
   PARKER, P. J.

If the motion for a new trial is to be deemed made upon the ground of newly-discovered evidence, it is clear that it should have been made upon a case. Bantleon v. Meier, 81 Hun, 162, is a plain authority to that effect. The arm ell ant urged that objection upon the motion, and it seems to us to have been well taken. If. we consider the motion made upon the ground of surprise, a case was not needed. Such a motion mav be made without a case, and upon affidavits. Code, § 998. But the affidavit- upon which the motion is founded does not present facts sufficient to warrant the granting of a new trial upon that ground. A careful reading1 of the affidavit will disclose that fact, and an analysis of its defects is not necessary. In re Ramsdell, 20 St. Rep. 466; Anderson v. Bank, 66 How. Prac. 8; Jackson v. Roe, 9 Johns. 77; Hatfield v. Macy, 52 How. Prac. 193. Moreover, the motion was not granted on any such grounds. The oninion of the county judge shows that upon the trial before him plaintiff had sought to recover on the ground that he and dcfendant were tenants in common of the crops sued for. That claim the county judge had overruled, and nonsuited the plaintiff. Upon the argument of this motion he seems to have reached the conclusion that they were tenants in common, and that, therefore, the “plaintiff actually had a cause of action which had miscarried.” Upon that ground he grants a new trial. In effect, that is granting a new trial for the reason that upon all the evidence the non-suit was improper. Olearly, in such a case, the motion could be made only upon a case and exceptions. Code, § 997. This case cannot be considered as a motion on the judge’s minutes, because such a motion must be made at the time of the trial. Code, § 999. And at the close of the trial such a motion was not made, but, on the contrary, time was given the plaintiff to make a case. The appellant urged those objections on the motion, and they should have prevailed.

Order of the county judge reversed, with ten dollars costs and disbursements, without prejudice to plaintiff’s making a motion in the county court for a new trial upon the proper papers.

All concur.  