Phelps v. Delmore

It was settled by the decision made in Tracey v. Altmyer, 46 N. Y. 598 , that a motion may be made at special term for a new trial on newly-discovered evidence after the entry of judgment. In Fisher v. Corwin, 35 Hun, 253 , it was held that loches would defeat such' a motion. In that case the delay was four years, and it appeared that the party seeking relief had appealed to the general term, where a new trial was ordered, unless the plaintiff stipulate to reduce the damages. The stipulation was given, and the judgment, as modified, was thereupon affirmed. Under the circumstances of that case it was held the motion was too late, inasmuch as “four years elapsed from the time of the entry of judgment to the making of the motion.” In Carpenter

“It is, however, claimed by the defendant that the finding of the referee is not sustained by the evidence; that the agreement was simply that Owens should pay $700 for the rent of the farm for the year, and that under this Owens became the entire owner of the crops. There was, however, direct evidence, in substance, that the agreement was as found by the referee. There was other evidence from which a different conclusion might have been reached.”

According to the rules applicable to a motion of this character, the case and exceptions must be considered in connection with the proposed new evidence, and inquiry must be made as to the probability whether a different result would be produced upon the second trial after the newly-discovered evidence was received by the tribunal called upon to examine the issues a second time. According to the affidavits submitted on this motion, the wife of Owens and several other witnesses mentioned in the affidavits can give important testimony upon the vital question involved in the issue. Without determining absolutely that such newly-discovered evidence, read in connection with the evidence used on the former trial, would necessarily lead to a contrary result from that reached by the referee, it seems reasonable that the issue should again be examined, in the light of all the evidence available to the defendant. In opposition to the affidavits produced of witnesses who can give such important testimony, the plaintiff has produced affidavits upon this motion with a view of impairing the strength and standing of the proposed witnesses to give the newly-discovered evidence. Whether such new witnesses are entitled to credit, or not, ought not to be determined upon this motion. That question belongs to the trial court, as was very properly said in Upington v. Keenan, (Sup.) 21 N. Y. Supp. 699 . It appears that Owens went into possession of the farm of the plaintiff, and that he held such possession under a written lease during the year 1885, and in the early part of 1886 an oral arrangement was made for the occupation of the plaintiff’s farm for that year, which was the subject of dispute on the trial before the referee, and as to which there was conflicting evidence, and the newly-discovered evidence relates to the terms of that new arrangement. On the 17th of August, 1886, Owens absconded, and on the 26th of August the plaintiff served a notice -addressed to Owens, by “delivering the same personally to Mrs. .Richard L. Owens, the wife of Richard L. Owens, on the said farm.” In that notice the plaintiff required the payment of the sum of $116.60 “for the rent of the farm and premises/ and on the 30th of August the plaintiff appeared before Barr, a justice of the peace of the town of Champion, and presented