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.