Majority
p. 972Louis Garno, Respondent, v. Henry P. Burgard, Appellant.
Headnote
Appeal from an order of the Supreme Court, entered in the Oswego county clerk’s office on the 26th day of May, 1915, denying defendant’s motion for a new trial.The motion for a new trial in this case in its essential characteristics is not founded on newly-discovered evidence. The impugning circumstances arose out of the confession of the witness Killen that he had given false (material) evidence on the trial of the action, and hence diligence in any degree would not have disclosed the groundwork of this motion before trial. The verdict and the judgment rest in fraud, perpetrated without the possible knowledge of the defendant. The court was imposed upon, as well as the defendant. It would, therefore, be a mockery of justice to require the payment of costs of a trial pregnated with confessed false evidence as a condition of granting to the injured
p. 973
and faultless party a new trial. The court owes a duty to the public weal to purge its records of fraud, and it should do so without penalizing an unoffending party. The perjury committed and confessed was not due to fault or mistake of the defendant, and hence, within the reason of the rule in Waltz v. U. & M. V. R. Co. ( 116 App. Div. 563 ) the new trial here given should be reversed, with costs of this appeal to the defendant to abide the event of the action. All concurred, except Robson, J., who dissented. Order denying motion for new trial on the ground of newly-discovered evidence reversed, and motion granted, with costs to appellant to abide event. Judgment and order denying motion for new trial on the minutes of the court vacated and set aside.