
    Madge Rayne, an Infant, by John F. Rayne, Her Guardian ad Litem, Appellant, v. John O’Connor, Respondent.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    Motions and orders — when motion could not be granted except on a case made and settled at Special Term.
    Where an order, granted on the reargument of a motion to set aside a verdict on the judge’s minutes, on the ground of surprise and newly discovered evidence, does not specifically state the grounds on which it is granted, but the assumption is warranted that it was on the last-named ground only, said order if regarded as granted under section 999 of the Code of Civil Procedure was unauthorized as the court was without authority because the term at which the trial was had had expired, and if regarded as granted on newly discovered evidence said order was also unauthorized because the motion could not be granted except on a case made and settled at Special Term.
    Appeal by the plaintiff from an order of the City Court of the city of New York, entered by the trial justice herein, setting aside a verdict and granting a new trial, after reargument of a motion made upon the minutes at the close of the trial.
    
      Abraham Harris (Hugo Wintner, of counsel), for appellant.
    Thomas E. Rush (Effingham N. Dodge, of counsel), for respondent.
   Delany, J.

This was an action for damages for negligence in which the plaintiff was awarded a verdict. On the rendition of the verdict the defendant made the customary motion to set the verdict aside and for a new trial, under section 999 of the Code of Civil Procedure. This motion was thereupon denied and an order to that effect was made and judgment entered. Subsequently, and after the term at which the motion was made had passed, the defendant obtained an order returnable before the same trial justice — then sitting ■in another part of the court, but not in Special Term — to show cause why: The defendant’s motion to set aside the verdict and for a new trial of this action, made upon the minutes at Trial Term, Part VII, on the 21st day of November, 1913, should not be reheard and reargued in furtherance of justice, and why said motion should not be granted upon the grounds stated at the time of said motion, and upon the further ground of manifest injustice to the defendant and of newly discovered evidence and surprise and why the defendant should not have such other and further relief as to the court may seem just and proper. ’ ’ On the return day, plaintiff’s attorney appeared specially and preliminarily objected to the hearing of the motion, and took exception to the jurisdiction and authority of the justice to grant the order to show cause on which the motion was based, and to the jurisdiction and authority of the judge or court to hear and decide the motion, and objected further to the form and legal sufficiency of the proceeding and papers on the ground that there was no case made and settled, and to the sufficiency of the affidavits- upon which the order to show cause was granted to bring up the question of the reargument of the motion made under section 999 of the Code. These objections were overruled and the learned justice granted the order.

The assumption of jurisdiction we regard as irregular and as it was not acquiesced in by the plaintiff it constitutes reversible error. It will be observed that this motion purports to be made on two general grounds: First, to set aside the verdict on the judge’s minutes, under section 999 of the Code1, and second, on the ground of surprise and newly discovered evidence. The order granted did not state specifically the grounds on which it was granted but an accompanying opinion of the learned justice warrants the assumption that the ground for granting it was newly discovered evidence only. If it is regarded as an order granted under section 999 of the Code, the learned judge was without authority to grant the motion on a reargument because the term at which the trial was had had expired. Ellis v. Hearn, 132 App. Div. 207; Polo v. D’Achille, 157 id. 294, 296, 297. If it is regarded as a motion on newly discovered evidence it was likewise unauthorized for such a motion could not be grantéd except on a case made and settled at Special Term. Bridenbecker v. Bridenbecker, 75 App. Div. 6; Solomon v. Alexander, 128 id. 441.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the verdict and judgment reinstated.

Seabuby and Guy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and judgment reinstated.  