Healy v. Healy — 66 N.Y.S. 741

Majority

p. 741

(32 Misc. Rep. 342.)

HEALY v. HEALY et al.

(Supreme Court, Special Term, Monroe County.

August, 1900.)

Headnote

1 New Trial—Newly-Discovered Evidence—Declarations.

In an action to obtain specific performance of a decedent’s oral agreement to give plaintiff a child’s share in his estate, declarations of deceased tending to show that such contract was never made are not grounds for a new trial as newly-discovered evidence, since such declarations are affirmations of fact tending to disprove allegations of the complaint, and not corroborative of testimony of a witness at the trial.

2 Same—Conduct op Plaintiff.

In an action to obtain specific performance of a decedent’s oral agreement to give plaintiff a child’s share in his estate, newly-discovered evidence of conduct of plaintiff while a member of deceased’s family is not ground for a new trial, since such evidence would have no direct bearing on the question of making the contract.

p. 742

S. Same—Impeaching Evidence.

Newly-discoverefl evidence contradicting testimony given by plaintiff in her own behalf, being of an impeaching character, is not ground for a new trial.

Action Tby Neva C. Healy against Dorns Healy, as administrator of the estate of Joshua Healy, deceased, and others, to obtain specific performance of an oral agreement made by deceased to give plaintiff the share of a child of his own in his estate. Judgment for plaintiff. 66 N. Y. Supp. 82 .

Motion for new trial on ground of newly-discovered evidence denied.

Raines & Miller, for plaintiff.

Fletcher 'C. Peck (James H. Stevens, of counsel), for defendants.

It is sought to obtain á new trial for the purpose of introducing in evidence declarations of the decedent, Joshua Healy, ■made in his lifetime, tending to show that the contract which the plaintiff alleges and which it has been found by the trial court was ■made by Joshua Healy with the plaintiff’s mother for and on behalf of the plaintiff was not in fact made. These declarations of ■Joshua Healy, made in his own behalf or interest, are offered as affirmative evidence, tending to establish the defense. The ground ■upon which it is urged that these declarations are admissible is that •the declarations are within the exception held in Herrick v. Smith, 13 Hun, 446 , and cases there cited. The rule, as stated in Robb v. Hackley, 23 Wend. 50 , is that, where a witness is charged with •giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. As stated in Herrick v. Smith, supra, such testimony, correctly said to be dangerous, is to be accepted only under circumstances special in character, and then but for the purpose of corroborating the statement made upon the witness stand. Here the declarations proposed to be shown are to the effect that the deceased took the plaintiff without any agreement or contract, and that he had not adopted the plaintiff,—affirmations of fact tending to disprove the allegations of the complaint, and meet the case made by the plaintiff upon the trial, and not corroborative of the testimony of any witness for the defendants upon the trial.

The other alleged newly-discovered evidence is as to the conduct of the plaintiff while a member of the decedent’s family, which would have no direct bearing upon the question of the making of the alleged contract, and, if admissible for any purpose, is not of sufficient importance to warrant the granting of a new trial.

The proposed contradiction of the testimony given by the plaintiff in her own behalf on the trial is as to matters relatively unimportant, besides being evidence merely of an impeaching character, and therefore such as would not authorize the granting of a new trial upon newly-discovered evidence.

For these reasons I am of the opinion that the motion for a new .trial should be denied.

.Motion denied.

Cases cited

Robb v. Hackley & Welton 23 Wend. 50 N.Y. Sup. Ct. p. 742