Majority
p. 286New York County. Hon. D. G. ROLLINS, Surrogate. September, 1887. Matter of Collins. In the matter of the estate of Michael Collins, deceased.
Headnote
One applying for a new trial, on the ground of newly discovered evidence, must present the affidavits of the proposed witnesses, or explain his omission.Motion for new trial.
W. C. Beecher, for the motion.
J. O’Byrne, opposed.
I must deny the motion for a new hearing herein. I am not entirely satisfied that, by the exercise of reasonable diligence, the respondent’s attorney might not, before trial, have discovered the evidence upon which he now relies. And, besides, he does not present the affidavits of the persons from whom he expects the additional testimony or show why he has failed so to do. This circumstance is of itself fatal to his application (Shumway v. Fowler, 4
p. 287
Johns., 425 ; Denn v. Morrell, 1 Hall, 382 ; Sheppard v. Sheppard, 5 Hals., 250; Smith v. Cushing, 18 Wisc., 295; Gould v. Moore, 40 N. Y. Sup’r., 387; Arnold v. Skaggs, 35 Cal., 684 ; Cowan v. Smith, 35 Ill., 416 ; Bright v. Wilson, 7 B. Mon., 122 ).