Armstrong Manufacturing Co. v. Thompson — 88 N.Y.S. 151

Majority

p. 151

ARMSTRONG MFG. CO. v. THOMPSON et al.

(Supreme Court, Appellate Term.

May 5, 1904.)

Headnote

1. New Trial—Newly Discovered Evidence—Moving- Papers—Sufficiency.

Papers on motion for a new trial on the ground of newly discovered evidence are defective where they do not contain an affidavit by the newly discovered witness setting forth his readiness to swear to the facts claimed to be newly discovered, and do not assign any reason for the nonproduction of such an affidavit.

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by the Armstrong Manufacturing Company against Joseph Thompson and James Moran. From an order denying a new trial on the ground of newly discovered evidence, defendants appeal. Affirmed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

Clarence K. McGuire, for appellants.

John F. Booth, for respondent.

It is extremely doubtful if the proposed newly discovered evidence is of that decisive character that, if introduced at the

p. 152

trial, a different result would have ensued. But even if it be conceded that such would have been the effect, the motion was properly denied for the reason that the papers are defective, in that they do not contain an affidavit by the newly discovered witness setting forth his readiness to swear to the facts claimed to be newly discovered. Adams v. Bush, 1 Abb. Dec. 7; Seaman v. Clarke, 75 App. Div. 345 , 350, 78 N. Y. Supp. 171 . And no reason is assigned for the nonproduction of such an affidavit. Matter of Cohen, 84 Hun, 586 , 32 N. Y. Supp. 851 . Order affirmed, with costs to the respondent.