Lopez v. Margulies

It does not appear whether defendant objected to the granting of the motion for a new trial on the ground that it was based on affidavits alone and that no case settled and signed was before the court on the motion. If he did so, that would have been a ground for denying the motion, or ordering a case to be made as required by rule 221 of the Rules of Civil Practice. If he did not raise that question at the Special Term, he waived it (Russell v. Randall, 123 N. Y. 436; Sachs v. Blum, 241 App. Div. 384), and would be entitled to review on the appeal only such questions as can be fairly…