p. 201Martha E. Hayward, Individually and as Administratrix with the Will Annexed of Jay C. Wemple, Deceased, Respondent, v. Caroline M. Wemple and Frances M. Wemple, Individually and as Executrix of and Trustee under the Will of Alonzo E. Wemple, Deceased, Respondents, Impleaded with William T. Hayward and Others. The Esseff Realty Company, Appellant; William B. Hurd, Jr., Referee, Respondent.Headnote
Motion and order— renewal of motion—newly-discovered evidence.Where a motion by a purchaser of real estate to be relieved from his bid upon the ground of mistake has been denied and no permission given to renew the same, an application for an order appointing a referee to take affidavits of other witnesses, who will testify to facts involved in the original application and determined therein, to be used upon the hearing of another motion upon the same grounds, should be denied, as the evidence sought is not of the character of newly-discovered evidence.
Appeal by the purchaser, the Esseff Realty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of June, 1912, denying the application of the appellant for a reference pursuant to section 885 of the Code of Civil Procedure.
Abram I. Elkus [Carlisle Ji Gleason and Richard Kelly with him on the brief], for the appellant.
William N. Dyhman [Francis L. Archer with him on the brief], for the plaintiff, respondent.
Louis Marshall [Louis Malthaner with him on the brief], for the respondent Caroline M. Bovee (formerly Wemple).
The order denying appellant’s application to be relieved of its bid was made and entered on the 29th day of April, 1912. (Hayward v. Wemple, No. 1, 152 App. Div. 195 .) More than a month thereafter an application was made for an order
p. 202appointing a referee to take the .affidavits, of. certain persons named to be used upon the hearing of another motion by the Esseff Realty Company to be relieved from' its bid upon the same grounds which were made the. basis of the preceding application. That motion was denied, and from the order of denial this appeal is taken.
The order must be affirmed. No permission was given to renew the previous motion. It- appears from the moving papers that the evidence sought to be obtained through These affidavits is not of the character of newly-discovered evidence, hut that an attempt is to he made to retry a question once litigated and decided adversely to the moving party, by calling further witnesses to testify as to facts involved in the original controversy and determined therein.
The order must he affirmed, with ten dollars costs- and disbursements.
Hirschberg, Thomas, Woodward and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.