Schuster v. Tompkins
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Frederick J. Tompkins, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of July, 1917, as resettled by an order entered on the 11th day of October, 1917, setting aside the verdict of a jury and granting plaintiff’s motion for a new trial on the ground of newly-discovered evidence.
1Per curiam
The regular practice is that a motion for a new trial shall be made on a case (Code Civ. Proc. § 997), but if the motion is made without a case, on affidavits, and the counsel opposing the motion proceeds to argument without objection on that score, he waives his right to require a case to be made; and this was what was done. (Russell v. Randall, 123 N. Y. 436.) Nevertheless, the affidavits should clearly give the court the information which is usually supplied by the case and which is necessary to a proper decision of the motion. Such information is that the evidence is not merely cumulative…
2Cases cited1 opinion
- Russell v. . RandallNew York Court of Appeals · 1890
3Cited by2 opinions
- Sachs v. BlumAppellate Division of the Supreme Court of the State of New York · 1934
- Bobowski v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1950