J. W. Cushman & Co. v. Wittenauer — 147 N.Y.S. 1119

Majority

p. 1119

J. W. CUSHMAN & CO. v. WITTENAUER et al.

(Supreme Court, Appellate Term, First Department.

June 3, 1914.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action bj; J. W. Cushman & Co. against Frank C. Wittenauer and another, executors of Charles Wittenauer, deceased. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Order-denying new trial affirmed, judgment for defendants reversed, and new trial granted.

Joseph Day Lee, of New York City, for appellant.

Murtha & Hanson, of New York City (Thomas F. Murtha, of New York City, of counsel), for respondents.

The two letters dated, respectively, February 1 and 10, 1913, were, in view of the evidence as to acts by plaintiff subsequent to the alleged surrender, competent evidence, and the interests of justice would seem to require that the motion to open the case before decision should have been granted in the exercise of a sound discretion, in order to enable plaintiff to introduce them in evidence on the trial, and that they, in case of appeal, might be properly before the appellate court. Order denying motion for new trial on ground of newly discovered evidence affirmed. Judgment for defendants reversed, and new trial granted, with costs to appellant to abide the event.