
    RUBIN v. FRIEDMAN.
    (Supreme Court, Appellate Term.
    November 11, 1910.)
    1. Courts (§ 190*)—Municipal Courts—Motion for New Trial.
    Where no objection was made in the trial court that a motion for a new trial from a Municipal Court judgment was not made within five days, as required by Municipal Court Act (Laws 1902, c. 580) § 254, it could not be raised on appeal.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.]
    
      2. Courts (§ 189)—Municipal 'Courts—Motion por New Trial—Requisite —Case Made.
    Though a settled case is necessary on a motion for a new trial for newly discovered evidence, it is not necessary on a motion on exceptions, etc., as provided by Municipal Court Act (Laws 1902, c. 580) § 254.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
    3. Courts (§ 190*)—Municipal Courts—Appeal—Case Made—Necessity.
    While Code Civ. Proc. § 999, requiring an appeal from an order granting a new trial to be made on a case settled, is made .inapplicable to the Municipal Court by section 3347, subd. 7, yet where an appeal is taken from an order granting a new trial, as authorized by Municipal Court Act (Laws 1902, c. 580) § 254, a case must be settled under the practice provided for by Code Civ. Proc. § 999.
    [Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by Jacob Rubin, as administrator of the goods, chattels, and credits of Pesach Rubin, deceased, against Max Friediman. From a Municipal Court judgment, setting aside a judgment in favor of plaintiff and ordering a new trial, plaintiff appeals. Record returned.
    Argued before SEABURY, PAGE, and BIJUR, JJ.
    Joseph Gans, for appellant.
    Greenbaum & Rifkind, for respondent. •
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

The plaintiff, as administrator, brought suit on a note for $20Q made by defendant to plaintiff’s intestate. Defendant offered evidence to prove payment of $175, and tendered ■ payment of the remaining $25. The court, after a trial without a jury, found for the plaintiff. A motion for a new trial was thereupon made, but not within five days, as required by section 254 of the Municipal Court act (Laws 1902, c. 580). As no objection was raised below on this point by appellant, it cannot be raised now. See Fallon v. Crocicchia, 52 Misc. Rep. 503, 102 N. Y. Supp. 543.

Appellant’s principal contention on this appeal is that the motion was not made on a case made and settled; but, while a case is necessary on a motion for a new trial on newly discovered evidence, it is not necessary on a motion on exceptions, etc., under section 254 of the Municipal Court act. Altmark v. Haimowitz, 55 Misc. Rep. 195, 105 N. Y. Supp. 205. On an appeal, however, it is evident that this court cannot determine whether the order was properly made unless a sufficient record is before it. While section 999 of the Code—which requires an appeal from such' an order in courts of record to be made upon a case settled—is by section 3347, subd. 7, made inapplicable to the Municipal Court, nevertheless we feel bound to hold that the same practice must be followed. We have heretofore held (Altmarlc Case, supra) that a motion for a new trial in the Municipal Court must, by analogy with section 997 of the Code, be made upon a case settled; and it seems to us that the same reasoning requires that the practice provided for in section 999 be followed on appeal from an order made under the corresponding section of the Municipal Court act, namely, section 254.

The record is returned, to the files of this court, and the appellant may procure a return from the judgment to be settled and filed and attached to the papers upon appeal, and renotice the appeal for argument. All concur.  