
    Joseph Atkinson, et al., Respondents, v. Titus B. Truesdell, Appellant.
    Decided November 21, 1889.
    Appeal from an order re-settling an order granted at special term denying defendants’ motion for a new trial on a case, etc., by striking out from that order the words “ ten dollars ” leaving in lieu thereof a blank space for the insertion after taxation by the clerk of the amount of statutory costs allowed by the code on a motion for a new trial on a case.
    Edward P. Wilder, for appellant.
    Samuel W. Weiss, for respondents.
    Before Truax and Ingraham, JJ.
   The Court held'(Ingraham, J., writing, Truax, J., concurring),

that as the records before the general term showed that the motion was made on a case, and was argued and decided on the merits, the objection that under § 1002 it could not have been made on a case, inasmuch as it was not made at the term at which the case was tried, or before the time in which the defendant could take an appeal from the judgment had expired, was untenable. The case of Forstman v. Schutling, 38 Hun, 485, distinguished.  