Klinger v. Markowitz — 66 N.Y.S. 1135

p. 1135

KLINGER, Appellant, v. MARKOWITZ, Respondent.

(Supreme Court, Appellate Division, First Department.

November 9, 1900.)

Headnote

Action by Louis Klinger, by guardian, against. GCerman Markowitz. From an order granting lefendant’s motion to set aside a judgment in "avor of plaintiff and awarding a new trial (65 ST. Y. Supp. 369), plaintiff appeals.

Affirmed,

loseph Wilkenfeld, for appellant. Max Altnayer, for respondent.

For the reasons stated in the ipinion of the court below, the order appealed from should be affirmed, with costs.

PATTERSON and HATCH, JJ., concur.

(dissenting). The court be-ow granted a new trial of this action upon the ;round that one of the witnesses called by the ilaintiff in rebuttal testified falsely. His testinony was contradicted, and the questions of fact were submitted to the jury. The court ;hen, upon the affidavits of several persons vhich tended to show the statement of this vitness called by the plaintiff was false, granted i new trial. I know of no principle upon which ¡uch an order can be sustained. When the issues in such an action are tried by a jury, their rnrdict should, I think, be final; and, if they nay be retried upon affidavit by the special term, t seems to me that it would be better to have he case originally tried upon affidavits, rather han to go through the useless formality of subnitting the question to a jury. I think the oiler should be reversed.

VAN BRUNT, P. X, concurs.