Newschloss v. Wittner — 86 N.Y.S. 211

Majority

p. 211

NEWSCHLOSS v. WITTNER.

(Supreme Court, Appellate Term.

January 25, 1904.)

Headnote

1. New Tbial—Newly Discovebed Evidence—Conditions.

Where, after verdict and judgment for plaintiff, defendant presented irresistible reasons for the granting of a new trial for newly discovered evidence, it was error, in granting a new trial, to impose as conditions the giving of an undertaking by defendant to plaintiff conditioned to pay any judgment that might thereafter be recovered by plaintiff against defendant, and the payment of $104 costs of the action taxed in the judgment roll.

Appeal from City Court of New York, Trial Term.

Action by Mary Newschloss against Huida Wittner. From an order vacating a verdict and judgment rendered thereon, and granting a new trial, plaintiff appeals. " From so much of the order as made the relief conditional on payment by defendant to plaintiff of the sum of $104 costs, and the giving of an undertaking conditioned to pay any judgment that might thereafter be recovered by plaintiff against defendant, defendant also appeals. Modified.

Argued before FREEDMAN, P. J., and MacEEAN and DAVIS, JJ.

p. 212

Manheim & Manheim (Jacob Manheim, of counsel), for appellant.

Louis A. Jaffer, for respondent.

The plaintiff recovered judgment against the defendant for the sum of $1,134.27, including $104.79 costs. Subsequently, upon defendant’s application, the judgment was vacated, and a new trial granted, upon condition that the defendant give an undertaking to pay any judgment which may be recovered, and upon the further condition that the defendant pay to the plaintiff, within 10 days after the entry and service of the order, $104—the costs of the action as taxed in the judgment roll. Considering the recital in the first order granting the motion for a new trial, and from the opinion of the justice granting a new trial, as well as from an inspection of the evidence and testimony taken at the trial, and the affidavits used upon the application, I am .convinced that the defendant presented irresistible reasons for the granting of a new trial. Her newly discovered evidence will go far to establish the falsity of the testimony of plaintiff’s witness. In view of this aspect of the case, it would seem that to compel the defendant to pay $104 and to give an undertaking is a harsh penalty to impose. I think the order appealed from should be modified by striking out the provision as to payment of costs and the giving of an undertaking, and that the disbursements of the trial and a trial fee only should be allowed as a condition of granting the motion for a new trial, and, as so modified, it should be affirmed, without costs.

Order appealed from modified as aforesaid, and as modified affirmed, without costs on defendant’s appeal, and with costs and disbursements to defendant on plaintiff’s appeal. All • concur.