The defendants appeal from an order of the Municipal Court that grants a new trial to the plaintiff for newly discovered evidence. This appeal lies as from a judgment (section 255, Municipal Court Act [Laws 1902, p. 1563, c. 580]), and is well taken, because such a motion requires a case made and yet there was none (Altmark v. Haimowitz [Appellate Term] 55 Misc. Rep. 195, 105 N. Y. Supp. 205; Harris v. Gregg, 4 App. Div. 615, 38 N. Y. Supp. 844; Davis v. Grand Rapids Fire Ins. Co., 5 App. Div. 36, 39 N. Y. Supp. 71; Nichols’ New York Practice, p. 2656). This motion cannot be regarded as made on the minutes. Harris v. Gregg, supra. And, as is pointed out in Davis’ Case, supra, how, without a case, can it be determined whether the new evidence is cumulative merely, or goes only to the impeachment of the testimony, or, if offered at the trial, it fairly might have changed the result thereof.
The order is reversed, with costs. All concur.