
    (81 Hun, 162.)
    BANTHEON v. MEIER.
    (Supreme Court, General Term, Fifth Department.
    October 17, 1894.)
    1. New Trial—When Case is Necessary.
    Under Code Civ. Proc. § 997, providing that, where a party intends to move for a new trial on an issue of fact, “he must, except as otherwise provided by law, make a case, and procure the same to be settled,” a motion for á new trial on the ground of newly-discovered evidence can be made only on such case.
    3. Same—Rene wins Motion after Decision on Appeal.
    Where an order granting a new trial is reversed on appeal, it is a question for the trial court whether the plaintiff will be allowed to renew the motion.
    3. Appeal—Review&emdash;Objections Waived.
    A preliminary objection on the hearing of motion for a new trial is not waived where the party objecting contests the motion on the merits without further objection.
    Appeal from Monroe county court.
    Action by Fredericka Bantheon against Elizabeth Meier. From an order granting a motion for a new trial, on the ground of newly-discovered evidence, defendant appeals. Reversed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ..
    H. G. Pierce, for appellant.
    J. P. Vamum, for respondent.
   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 section 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, 23 N. Y. Supp. 953). 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 for a new trial of an issue of fact, “he must, except otherwise provided by law, malte 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 (Sup.) 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. Transportation Co., 5 Rob. [N. Y.] 499); and the statute is founded upon a substantial reason, having relation to the consideration of such motions on the merits. In reviewing the decision of the court in Russell v. Randall, 123 N. Y. 436, 25 N. E. 931, the court of appeals, recognizing the rule-to be as above stated, held that by the omission to raise the ques- 1 tion on the hearing of the motion the objection was waived, and not available on review. The objection was distinctly and in due time I 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 (Super. Ct. N. Y.) 19 N. Y. Supp. 716, the motion upon the like ground was denied, with leave to renew. Whether the-plaintiff may have such opportunity is a question for consideration in the county court only. The order should be reversed, without prejudice, etc. All concur.  