Davis v. Grand Rapids Fire Insurance — 7 A.D. 403

Majority

p. 403

Isaac Davis, Respondent, v. The Grand Rapids Fire Insurance Company, Grand Rapids, Michigan, Appellant.

Headnote

New trials upon the ground of newly-discovered evidence'—proof as to its changing the result — the party must move promptly.

Where upon an application for a new trial of an action, upon the ground of newly-discovered evidence, it appears that the defendant has delayed eight months after the discovery of the alleged evidence before making the motion, and that the evidence in question has been used in two actions of the same kind which have been tried in the interval, in one of which the plaintifE, and in the other the defendant has succeeded, it is doubtful whether it can fairly be said that the newly-discovered evidence would-be likely to change the result; and this fact, coupled with the delay in making the application, is sufficient to justify the court in denying the application.

Appeal by the defendant, The Grand Rapids Fire Insurance Company, Grand Rapids, Michigan, from an order of the Superior Court of Buffalo, made at a Special Term thereof and entered in the office of the clerk of said court on the 19th day of November, 1895, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.

Adelbert Moot, for the appellant.

Moses Shire, for the respondent.

This is one of five actions brought upon various policies of insurance against the several companies which issued the same to recover the losses the plaintiff claims to have- sustained in consequence of the destruction by fire of a stock of cloths and clothing in the city of Buffalo on the 10th day of November, 1893.

This particular action was tried in the Buffalo Superior Court in February, 1895, and resulted in a verdict for the plaintiff.

At the same term a motion was made upon the minutes of the court for a new trial upon the various grounds specified in section 999 of the Code of Civil Procedure, which was denied, and judgment for damages and costs was entered upon the 5th day of April, 1895. Upon the twenty-ninth day of April an appeal was taken from such judgment and from the order denying the defendant’s

p. 404

motion for a new trial to the General Term of the Superior Court, where an affirmance was had in the month of December following, and thereupon an appeal was taken to the. Court of Appeals, which, is still pending.

The more material portion of the newly-discovered evidence, which is set out in the moving affidavits,, was discovered as early as. March 1, 1895, and it appears to be more or less material to the. issues tried; but whether it is of such a character as to justify the-conclusion that it would probably have changed the result, could the defendant have had the benefit of it upon the trial, is somewhat; problematical, inasmuch as it appears that since its discovery two., additional actions have been tried, with the result that the plaintiff succeeded in' one of them and the defendant in the other. But, whatever view may properly obtain as to. this feature of the motion, we feel constrained to affirm the order appealed from, upon the ground of laches upon the part of the defendant, for it appears that this motion was not made .until Rovember, 1895, which was more than eight months after the additional evidence is claimed to have been discovered.- During this interim the defendant had had the opportunity, of weighing its effect upon the minds of the jury in the-two cases adverted to, and it was not until the second, of those cases, had been tried, and a result reached favorable to the defendant, that any effort was made to obtain a copy of the minutes of the evidence of the newly-discovered witnesses upon which to found the defendant’s motion. In the meantime the defendant had elected to appeal from the order' denying its motion for a new trial and from the"judgment entered thereon, and this appeal was argued at the General Term before the motion for a new trial upon the ground of newly-discovered evidence was brought to a hearing.

We do not overlook, the fact that there is. much in the evidence in this case to warrant the inference which the defendant seeks to draw therefrom; but, at the same time, we are reminded that it has-received careful consideration at the hands of an impartial jury, whose conclusion thereon the trial court found no occasion to disturb, and that the- same judge whc presided at the trial has likewise determined--that the newly-discovered evidence was not of such a character' as to justify him in granting a new trial. In view of all thé’Sé circtiinstances, but more particularly by reason of the defend

p. 405

ant’s delay in bringing the motion to a hearing until after judgment had been entered, we think the order appealed from should be affirmed. (Sheldon v. Stryker, 27 How. Pr. 387 ; Peck v. Hiler, 30 Barb. 656 ; Fisher v. Corwin, 35 Hun, 253 .)

All concurred, except Haedin, P. J., not voting.

Order affirmed, with costs.