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Jacquin v. Applegate

New Jersey Supreme Court


Decided: August 4, 1942.

EMMA JACQUIN AND JOSEPH JACQUIN, PLAINTIFFS-RESPONDENTS,
v.
MABEL C. APPLEGATE, DEFENDANT-APPELLANT

On appeal from an order of the Ocean County Court of Common Pleas.

For the appellant, Cecil W. Rotzell.

For the respondents, Robert A. Lederer.

Before Brogan, Chief Justice, and Justices Case and Heher.

Heher

[128 NJL Page 598]

The opinion of the court was delivered by

HEHER, J. This is an action in tort for negligence arising out of a collision of motor vehicles. Defendant interposed a counter-claim. The jury rendered a verdict in favor of the defendant on the complaint, and in favor of the plaintiff on the counter-claim. Judgment was entered accordingly.

Thereafter, on plaintiff's motion, the verdict was vacated and a new trial granted on the ground of the existence of newly-discovered evidence. Defendant thereupon appealed from the order so made; and it is affirmed that what is denominated "newly-discovered" evidence is not such in fact and in law, and the action thus taken is therefore a palpable abuse of discretion. The retrial has not been had.

The challenged order does not take the category of a final judgment, and it is therefore not appealable. An appeal lies only from a final judgment. R.S. 1937, 2:27-349. Vide Kople v. Zalon, 122 N.J.L. 422; Gaffney v. Illingsworth, 90 Id. 490; Benz v. Miller, 12 N.J. Mis. R. 630; Sonzogni v. Sansevere, 6 Id. 675; Cox v. Rosenvinge, 4 Id. 949.

The appeal is accordingly dismissed, with costs.

19420804


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