Heineman v. Worth , 237 A.D. 849 ( 1932 )

Order granting the defendant’s motion to set aside the verdict and vacating the judgment and granting a new trial on the ground of newly-discovered evidence and order granting the same relief on reargument reversed on the law and the facts, with costs, and motions denied, with ten dollars costs. Although the defendant moved for a new trial at Special Term on the ground of newly-discovered evidence, he did not make a ease and procure the same to be settled or signed in the same manner as in an appeal from a judgment. (Civ. Prac. Act, § 552; Rules Civ. Prac. rule 221.) However, it affirmatively appears that the record in the dispossess proceedings sought to be introduced in evidence on a new trial would not change the result of the trial. The lease between the parties, plaintiff’s Exhibit 1 upon the trial, attached to the papers on the argument by consent, discloses that the lessee, the defendant in this action, agreed that he should remain liable for the rent reserved to the end of the term although evicted by summary proceedings and out of possession. (Mann v. Munch Brewery, 225 N. Y. 189; Henochstein v. Nachman, 218 App. Div. 673.) Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.