Miller v. Roesler — 254 A.D. 831

Majority

p. 831

Albert W. Miller, Respondent, v. Edward Roesler and Others, as Copartners Doing Business under the Firm Name of Laidlaw & Company, and Hugh P. Winslow, Appellants.

(Appeals No. 1 and No. 2.)

In the light of the documentary proof, the other evidence in the case, and the inherently improbable story of plaintiff, the jury’s verdict was contrary to the weight of the credible evidence. The judgment in favor of the plaintiff should, accordingly, be reversed and a new trial ordered.

We think, too, that, in the exercise of its discretion, the court should have granted the motion for a new trial upon the ground of newly-discovered evidence. However, in view of our disposition of the appeal from the judgment, it becomes unnecessary to pass upon the appeal from the order denying that motion.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event. The appeal from the order denying the motion for a new trial upon the ground of newly-discovered evidence should be dismissed, without costs.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

In Appeal No. 1: Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event.

In Appeal No. 2: Appeal from order unanimously dismissed, without costs.