
    JACK H. REMINGTON, PROSECUTOR, v. LAUTER PIANO COMPANY ET AL., DEFENDANTS.
    Submitted May 12, 1933
    Decided October 3, 1933.
    Before Justices Pabker, Lloyd and Perskie.
    Por the prosecutor, Herman L. Fast.
    
    Por the defendants, Flias A. Xanter.
    
   Per Curiam.

The state of the case is rather confused, and there is no return to the writ of certiorari in proper form. Prom the case and briefs we gather that prosecutor wishes this court to set aside an order in the District Court opening a judgment, and on the ground that the application to open the judgment and allow a new trial was made more than thirty-days after rendition of the judgment. Comp. Stat., p. 1959, § 17. See Schubert v. District Court, 10 N. J. Mis. R. 414; 159 Atl. Rep. 615; Clarke v. Lubin, 4 N. J. Mis. R. 518; 133 Atl. Rep. 405. The answer is that the application was within the statutory exception, as based on newly discovered evidence.

Assuming there is a record before us, there is no proof on the issue of fact that we should consider. The affidavits for and against allowance of the writ have spent their force. Linzmayer v. Baird, 5 N. J. Mis. R. 362; 136 Atl. Rep. 510. This is elementary. Moreover, the evidence taken at the first trial is not presented. Clarke v. Lubin, supra. In short, there is nothing before us to support the prosecutor’s claim. The writ is dismissed, with costs.  