Majority
p. 769Sternfeld et al. v. Williamsburg City Fire Ins. Co. (Supreme Court, General Term, First Department. November 23, 1888.) Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
Headnote
Appeal from circuit court, New York county.Action by Adolph Sternfeld and others against the Williamsburg_ City Fire Insurance Company on an insurance policy. From a judgment on the verdict of a jury, and an order denying a motion upon the minutes for a new trial, and from an order denying a motion for a new trial on the ground of newly-discovered evidence, defendant appeals.
O. E. Bright, for appellant. W. W. Niles, for respondents.
The recovery in this action was for the amount of a policy issued upon the property of
p. 770
diet was for the full amount of the policy, together with interest upón it; sná the motion was made for a new trial upon affidavits similar to those which have been mentioned in the case of the same plaintiffs against the Western Insurance Company, (ante, 768.) The evidence, which was discovered after the trial, was in no sense cumulative, as that rule has been settled by the authorities; and it is of such a description as to indicate a probability that upon its introduction into this case it may change the result of the litigation. And as there was no want of. diligence in the discovery of the evidence, which it might have been anticipated would be produced by the plaintiffs themselves, •or in making the application which was denied by the order, it follows that the order denying a new trial because of newly-discovered evidence should be reversed, with $10 costs, and also disbursements; and the verdict and judgment should be set aside, and a new trial ordered, upon payment by the defendant of the costs of the trial already had. It' such payment shall not be made within 20 days after notice of the adjustment by the clerk of the amount of costs to be paid, then the order as well as the judgment should be affirmed, with costs. ■
Van Brunt, P. J., and Beady, J., concur.