Prinzi v. Cataldo — 110 N.Y.S. 1054

Majority

p. 1054

PRINZI v. CATALDO.

(Supreme Court, Appellate Term.

June 5, 1908.)

Headnote

New Trial—Newly Discovered Evidence—Sufficiency—Receipt. -

In ap action for the price of goods, the issue was as to a cash payment of a certain bill, and judgment was for plaintiff; but defendant subsequently claimed to have found in his store a receipt for the payment. Held that, in furtherance of justice, a new trial was properly granted.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 201-217.]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Antonio Prinzi against Sebastiano Cataldo. From an order granting a new trial on the ground of newly discovered evidence, plaintiff appeals.

Affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GERARD, JJ.

Ferdinand E. N. Bullowa (E. M. Bullowa, of counsel), for appellant.

Saitta & Thiele (George E. Joseph, of counsel), for respondent.

The action was brought to recover for sales of macaroni made by plaintiff to defendant. The defense was payment; the answer admitting the sales, but pleading payment, and averring that there were three separate sales, instead of two, as alleged in the complaint. The bill of particulars showed three sales.

The defendant produced two checks and two receipted bills. Defendant claimed that he paid one of the bills in cash, and the issue was as to the payment of this item. Defendant now claims that he has found in his store a receipt showing payment of this item. While the defendant may not have brought himself technically within the rules as to obtaining a new trial on the ground of newly discovered evidence, we are satisfied that, in the furtherance of the ends of justice, defendant should be allowed to produce this receipt at the trial of the action.

The order should therefore be affirmed, but without costs.