Summary
In Finkelstein v. Grodsky (139 Misc. 571) it is pointed out that a similar motion was heard and decided upon the minutes, the trial justice holding that this practice was proper under rule 221, but Judge DONNELLY seems to have sustained the trial judge on the ground that the making and settling of a case had been waived.
Summary of this case from Hart v. Ithaca ConservatoryOpinion
March 20, 1931.
Meyer Levy, for the plaintiffs.
Jacob M. Zinaman, for the defendant.
In my opinion, the clerk of this court was right in sustaining defendant's objections to the two items in the plaintiffs' bill of costs, namely, twenty dollars on appeal to the Appellate Term before argument on affirmation of the order denying motion for new trial on the ground of newly-discovered evidence, and forty dollars for argument.
Plaintiffs are the successful parties upon two appeals taken by the defendant, (1) from the judgment entered herein, and (2) from the order denying defendant's motion for a new trial upon the ground of newly-discovered evidence. On the taxation of plaintiffs' costs before the clerk of this court, plaintiffs' counsel contended that they were entitled to the same costs as upon an appeal, twenty dollars before argument and forty dollars for argument. So the Code of Civil Procedure, section 3251, subdivision 4, provided. By section 997 of the Code of Civil Procedure it was provided that where a motion for a new trial upon the ground of newly-discovered evidence is made, a case must be made and settled. It has been held that where the motion is denied, the successful party is entitled to the same costs as upon an appeal. ( Davis v. Grand Rapids Fire Ins. Co., 5 A.D. 36; Pease v. Pennsylvania Railroad Co., 137 id. 458.) The trial justice before whom the motion for a new trial for newly-discovered evidence was argued, heard and decided it upon the minutes, holding that the practice on such motion, under section 997 of the Code of Civil Procedure, which provided that it be made upon a case settled and signed, had been superseded by rule 221 of the Rules of Civil Practice, which allows the motion to be made upon the judge's minutes. The trial justice accordingly heard the motion on the minutes (EVANS, J., City Court of the City of New York, county of Bronx, Special Term, filed September 17, 1930). The settling and signing of a case on a motion for a new trial for newly-discovered evidence may be waived ( Nordmark v. City of New York, 225 A.D. 762, citing Russell v. Randall, 123 N.Y. 436). In the last case cited the court held that where a defendant makes an application for a new trial on the ground of newly-discovered evidence, and the motion is not founded upon a case, as is required by the Code provisions, he thereby waives the requirement of the Code that the motion shall be made upon a case. In the instant case the circumstances disclose that there was such a waiver. Davis v. Grand Rapids Fire Insurance Co. and Pease v. Pennsylvania Railroad Co. ( supra) were decided under the former practice, which required the settling and signing of a case.
Now Civ. Prac. Act, § 1508. — [REP.
Now Civ. Prac. Act, §§ 575, 576; Rules Civ. Prac. rule 221. — [REP.
Motion for retaxation denied.