
    Fannie Moses et al., Respondents, v. Patrick H. Hargrove, Appellant.
    (Supreme Court, Appellate Term,
    October, 1898.)
    Municipal^ Court of the city of New York — An order granting a new-trial, for surprise and newly-discovered evidence, is not appealableto the Appellate Term.
    The provisions of chapter 748 of the Laws of 1896, amending the-Consolidation Act, give the Appellate Term no jurisdiction to entertain an appeal from an order of the Municipal. Court of the city of New York granting the plaintiff a new trial, for surprise and ñewlydiscovered evidence, after the dismissal of the complaint, as such am order does not open a default, nor does it grant the motion, for a new-trial for any of “ the causes specified in section 999 of the Code of Civil' Procedure.”
    Ajppeal from an order made by the justice of '¡the Municipal" Court, borough of Manhattan, seventh district, granting a motion for a new trial, on the ground of surprise and newly-discovered’ evidence after judgment dismissing the complaint, with costs.
    Samuel F. Hyman, for appellant.
    Max Moses, for respondents.
   Per Curiam.

We are of opinion that an appeal does not he to this court, from the order in question, inasmuch as no statutory authority for such an appeal can be discovered; and it is only by virtue of some statutory provision that this court can entertain any appeal from judgments or orders rendered in the Municipal Courts. It is claimed that such jurisdiction is conferred upon us under the provisions of chapter 748 of the Laws of 1896. That statute, however, seems to authorize an appeal only from two classes of orders, viz.: First, from orders opening default and setting aside, vacating or modifying judgments .entered upon such defaults; Second, from orders granting motions for a new trial made for the causes specified in section 999 of the Code of Civil Procedure.

The order in question does not come under either class. There was no default, and it has been held that a motion for a new trial, under section 999 of the Code, cannot be entertained on the ground of surprise (Argall v. Jacobs, 56 How. Pr. 167; affirmed, 21 Hun, 114), nor can such a motion be made under that section on the ground of newly-discovered evidence.

In this view of the law, we, therefore, feel constrained to dismiss the appeal. Appeal dismissed, with costs.

Present: Beekman, P. J.; Gildersleeve and Giegerich, JJ.

Appeal dismissed, with costs.  