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Theresa Nordmark, as Administratrix of the Estate, Goods and Chattels of Carl E. Nordmark v. The City of New York
Order granting motion for a new trial upon the ground of newly-discovered evidence unanimously affirmed, with costs.. In so far as concerns the point of the appellant that the motion was not based upon a ease made and settled as required by rule 221 of the Rules of Civil Practice, we are of opinion that the appellant waived it.
(Russell v. Randall, 123 N. Y. 436.) Moreover, the motion was made on the stenographer’s minutes and the pleadings, all of which were before the Special Term justice, who was also, the trial justice, and the record before us contains the record of the trial in addition to the affidavits upon which the motion was based. Present — Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ.