Schwert v. Crawford

Order so far as it vacates the judgment and decision and orders the case upon the trial calendar reversed on the law, without costs, and otherwise affirmed, and motion to vacate the judgment and decision denied, with leave to make further motion for the same relief on the ground of newly-discovered evidence or any other ground recognized by the law and practice of the court. The judgment in this action was entered upon a decision of the court after a trial. Any irregularity or error on the trial should have been tested by appeal but no appeal was taken. The affidavits are insufficient if the motion is to be treated as one for a new trial based on newly-discovered evidence. Fraud is not urged as a basis for the order. We find no other grounds for the relief granted. For these reasons we must hold that the respondents failed to make a proper showing to justify the order which was granted. All concur.