Coddington v. Hunt — 6 Hill & Den. 595

Majority

p. 595

Coddington vs. Hunt, impleaded with Randolph.

Headnote

Where it clearly appears that a witness has fallen into a mistake in giving his testimony upon a material point in the cause, the court may in its discretion grant a new trial.

But unless the court are satisfied that the mistake had the effect of turning the verdict, they will not interpose.

Notice of the dissolution of a firm to one of its former customers may be inferred from circumstances.

Assumpsit, tried before Kent, C. Judge, at the New-York circuit in November, 1843. The action was on a promissory note for $101,09, signed “ Hunt & Randolph,” dated May 31st, 1836, and payable to the plaintiff six months after date. The note was in the hand-writing of Randolph. The parties all resided in the city of New-York. The defendants had been partners in business under the name of Hunt & Randolph. They dissolved their partnership in 1834, and each went into business separately in different streets. No newspaper notice was given of the dissolution, nor was any personal notice given to the plaintiff, with whom the partners had been dealers. The defendant Hunt undertook to make out notice to the plaintiff by circumstantial evidence; and proved by one Barle that the plaintiff had been in the store of the witness in the fall of 1835, or the spring of 1836, which store was next adjoining to the store in which Hunt was then doing business individually, with his own name alone on the sign. The witness was confident as to the time, and said the plaintiff was never in hi$

p. 596

store but once. The judge left it to the jury to say whether' the plaintiff knew of the dissolution before the note was given; and the jury found a verdict for the defendants. The witness Earle soon afterwards made an affidavit, stating that on examination he had found he was mistaken in his testimony on the trial as to the time the plaintiff was in his store; that it was in the fall of 1836 or spring of 1837—which was after the note in question had been given. The plaintiff now moved for a new trial on a case, and on the affidavits of Earle and others.

A. Schell, for the plaintiff.

J. Anthon, for the defendants.

When it clearly appears that a witness has fallen into a mistake in giving his testimony upon a material point in the cause, the court may, in its discretion, grant a new trial. (De Giou v. Dover, 2 Anst. 517; Richardson v. Fisher, 1 Bing. 145; Warren v. Hope, 6 Greenl. 479.) But the circumstances of the case should be such as to render it probable that 'the mistake of the witness had the effect of turning the verdict of the jury. It is plain enough that the witness Earle fell into a mistake as to the time when the plaintiff was at his store; and as the evidence stands corrected by his affidavit, it has no bearing against the plaintiff. Still, the jury might well find for the defendants again on another trial; for the partnership had been dissolved more than two years before the note was given, during which time the defendants had been separately in business in different streets, each under his own individual name. Such facts would warrant the inference that the old business acquaintances of the defendants, residing in the same city, knew that the partnership had been dissolved. (Irby v. Vining, 2 McCord, 379 .) But as there are some other facts in the case which make for the plaintiff, and the circuit judge thinks the verdict should be set aside, a new trial is granted on payment of costs.

Ordered accordingly.