#### Jacob Rubin, as Administrator of the Goods, Chattels and Credits of Pesach Rubin, Deceased, Plaintiff-Appellant, *v.*Max Friedman, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Municipal Courts — Procedure — New trial.

New trial — Proceedings to procure new trial — Bill of exceptions, case or statement of facts.

Saving questions for review — Objections and exceptions in general — Necessity — Motion papers and orders thereon.

The objection that a motion for a new trial was not made within five days of the rendition of judgment, as required by section 254 of the Municipal Court Act, cannot be raised for the first time on appeal from the judgment.

.While on a motion for a new trial in the Municipal Court of the city of New York upon the ground of newly discovered evidence a case made and settled is necessary, it is otherwise on a motion on exceptions, etc., under section 254 of the Municipal Court Act.

An appeal from an order of the Municipal Court of the city of New York granting a new trial must be heard upon a case settled as provided by section 999 of the Code of Civil Procedure.

Appeal by the plaintiff from an order of the Municipal Court of the city of Dew York, borough of Manhattan, first district, setting aside .a judgment in favor of the plaintiff and ordering a new trial.

Joseph Gans, for appellant.

Greenbaum & Rifkind, for respondent.

Bijur, J.

.The plaintiff, as administrator, brought suit on a note for $200 made by defendant to plaintiff’s intestate. Defendant offered evidence to prove payment of $1'75, and tendered payment of the remaining $25. The court, after a trial without a jury, found for the plaintiff-.

A motion for a new trial was thereupon made, but not within five days, as required by section 254 of the Municipal Court Act. As no objection was raised below on this point *329by appellant, it cannot be raised now. See Fallon v. Crocicchia, 52 Misc. Rep. 503.

Appellant’s principal contention on this appeal is that the motion was not made on a case made and settled; but, while a case is necessary on a motion for a new trial on newly-discovered evidence, it is not necessary on a motion on exceptions, etc., under section 254 of the Municipal Court Act. Altmark v. Haimovitz, 55 Misc. Rep. 195.

On an appeal, .however, it is evident that this court cannot determine whether the order was properly made unless a sufficient record is before it. While section 999 — which requires an appeal from such an order in courts of record to be made upon a case settled — is by section 3347, subdivision 7, made inapplicable to the Municipal Court, nevertheless we feel bound to hold that the same practice must be followed. We have heretofore held (Altmark case, supra) that a motion for a new trial in the Municipal Court must, by analogy with section.997 of the Code, be made upon a case *settled;*and it seems to us that the same reasoning requires that the practice provided for in section 999 be followed- on appeal from an order made under the corresponding section of the Municipal Court Act, namely, section 254.

The record is returned to the files of this court, and the appellant may procure a return from the judgment to be settled and filed and attached to the papers upon appeal and renotiee the appeal for argument.

Seabury and Page, JJ., concur.

Ordered .accordingly.