Landes v. Sallin

This an appeal by the plaintiff from an order vacating a judgment rendered against the defendant upon the ground of fraud, perjury, and newly discovered evidence.

The only point worthy of consideration urged by the appellant is that the motion made in the lower court was based upon affidavits alone, and was not made upon a settled case. See Altmark v. Haimowitz, 55 Misc. Rep. 195, 105 N. Y. Supp. 205; Rhodes v. Union Ry. Co., 108 N. Y. Supp. 949. This objection would be fatal, if a settled case was not before the court; but a case has been made and settled, *340and is with the return upon this appeal, and from its examination we are satisfied that the motion in the lower court was properly granted. Technicalities must give way to substance, and we think that the interests of justice will be best subserved by affirming the order of the lower court, which granted a new trial.

Order affirmed, with costs to abide the event.