Opinion
November, 1910.
Joseph Gans, for appellant.
Greenbaum Rifkind, for respondent.
The plaintiff, as administrator, brought suit on a note for $200 made by defendant to plaintiff's intestate. Defendant offered evidence to prove payment of $175, and tendered payment of the remaining $25. The court, after a trial without a jury, found for the plaintiff.
A motion for a new trial was thereupon made, but not within five days, as required by section 254 of the Municipal Court Act. As no objection was raised below on this point by appellant, it cannot be raised now. See Fallon v. Crocicchia, 52 Misc. 503.
Appellant's principal contention on this appeal is that the motion was not made on a case made and settled; but, while a case is necessary on a motion for a new trial on newly-discovered evidence, it is not necessary on a motion on exceptions, etc., under section 254 of the Municipal Court Act. Altmark v. Haimovitz, 55 Misc. 195.
On an appeal, however, it is evident that this court cannot determine whether the order was properly made unless a sufficient record is before it. While section 999 — which requires an appeal from such an order in courts of record to be made upon a case settled — is by section 3347, subdivision 7, made inapplicable to the Municipal Court, nevertheless we feel bound to hold that the same practice must be followed. We have heretofore held (Altmark case, supra) that a motion for a new trial in the Municipal Court must, by analogy with section 997 of the Code, be made upon a case settled; and it seems to us that the same reasoning requires that the practice provided for in section 999 be followed on appeal from an order made under the corresponding section of the Municipal Court Act, namely, section 254.
The record is returned to the files of this court, and the appellant may procure a return from the judgment to be settled and filed and attached to the papers upon appeal and renotice the appeal for argument.
SEABURY and PAGE, JJ., concur.
Ordered accordingly.