Majority
p. 1039BISHOP v. KINGSTON GAS & ELECTRIC CO. (Supreme Court, Appellate Division, Third Department. November 15, 1911.) Argued before SMITH, P. J., and KELLOGG, SEWELL, HOUGHTON, and BETTS, JJ.
Headnote
New Trial (§ 165*y—Newly Discovered Evidence—Vacating Grant.Where a new trial has been granted on the ground oí newly discovered evidence, the order will be set aside on the affidavit oí the expected witness that he would not testify as claimed.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 334; Dec. Dig. § 165.*]
Betts, J., dissenting.
Appeal from Special Term, Ulster County.
Action by Emma Bishop, as administratrix of the estate of Arthur Bishop, deceased, against the Kingston Gas & Electric Company. From, an order granting plaintiff a new trial, defendant appeals. Order reversed.
A. T. Clearwater, for appellant.
G. D. B. Hasbrouck, for respondent.
The motion for a new trial was granted, on the ground that the plaintiff since the trial had discovered that one Walker would give evidence material upon the question of defendant having properly maintained its electric light wires. The defendant produced the affidavit of Walker stating that he would not testify as claimed.
To authorize the granting of a new trial on the ground of newly discovered evidence, it must reasonably appear that such evidence would change the result of the former trial. It must be assumed that Walker would testify as stated in his affidavit. This being so, his evidence would not change the result of the former trial.
The order must therefore be reversed, with $10 costs and disbursements.
BETTS, J., dissents.