
    Fredericka Pantheon, Resp’t, v. Elizabeth Meier, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    1. New trial—Case.
    A motion for a new trial, under § 997 of Code, on the ground of newly discovered evidence, can be made only on a case.
    8. Same—Renewal.
    Whether such motion can be renewed after the reversal of an order granting it, is a question for the trial court.
    3, Appeal—Objection—Waiver.
    A preliminary objection, on a motion for a new trial, that no case was settled, is not waived by contesting the motion on its merits.
    ■ Appeal from an order granting a motion for a new trial, on the ground of newly discovered evidence.
    
      H. G. Pierce, for app’lt; J. P. Varnum, for resp’t.
   Bradley, J.

The motion was heard by the county court, and upon the decision judgment was entered dismissing the complaint, with costs against the plaintiff. Afterwards the plaintiff, upon affidavits, depositions taken pursuant to order of the court before a referee, the judgment roll, and proceedings in the action, moved for a new trial, upon the ground of newly discovered evidence ; and the motion was granted. When the motion came to a hearing, the defendant made preliminarily the objection to its being heard that no case, had been served. The objection was overruled, and exception taken. As the motion for the new trial was not within those mentioned in § 999 of the Code of Civil Procedure, the questions of fact presented on the hearing are not here for consideration (Id. §1340); and the power of the county court in that respect -is discretionary, and its exercise not reviewable upon this appeal. Tucker v. Pfau, 70 Hun, 59; 53 St. Rep. 553. The question is whether the court erred in entertaining and determining the motion on the merits without a case. The statute provides that, where a party intends to move fora new trial of an issue of fact, !‘hemust, except otherwise provided by law, make a case”and procure the same to be settled.” _ Code Civ. Proc. § 997. Our attention is called to no law which relieves a motion like the one in question from the operation of that rule. It was so held by this court in Russell v. Randall, 30 St. Rep. 452; 9 N. Y. Supp. 327. The statute, in its application to such a motion, is declaratory of the practice as it before then existed, Anon., 7 Wend. 331; Warner v. Western Transportation Co., 5 Rob. [N. Y.] 499; and the statute is founded upon a substantial reason, having relation to tbe consideration of such motions on the merits. In reviewing the decision of the court in Russell v. Randall, 123 N. Y. 436; 34 St. Rep. 110, the court of appeals, recognizing the rule to be as above stated, held that by the omission to raise the question on the hearing of the motion the objection was waived, and not available on review. The objection was distinctly and in due time taken in the present case, and it was not obviated or waived by the fact that the defendant contested the motion on the merits, without further objection taken in the later stage of the hearing of it. In Michel v. Colegrove, 46 St. Rep. 899; 19 N Y. Supp. 716, the motion upon the like ground was denied, with leave to renew. Whether the plaintiff ipay have such opportunity is a question for consideration in the county court only. The order should be reversed, without prejudice, etc.

All concur.  