Majority
p. 287LEVY v. HATCH. (Supreme Court, Appellate Term. February 23, 1905.) Argued before SCOTT, GIEGERICH, and McCALL, JJ.
Headnote
New Trial—Newly Discovered Evidence—Affidavit—Sufficiency.An affidavit stating that since the trial defendant had found a check which he had paid to plaintiff and had not proved on trial, but not-giving any reason why it was not found and produced at trial, nor stating that it was paid on account of the debt on which suit was brought, did not justify the granting of a new trial for newly discovered evidence.
[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 307, 308.]
Appeal from Municipal Court, Borough of the Bronx, Secohd District.
Action by Luden Levy against John Hatch. There was judgment for plaintiff, and, from an order granting defendant’s motion for a new trial, plaintiff appeals. Reversed.
Weill & Weill, for appellant.
Frederick N. Van Zandt, for respondent.
The order granting a new trial on the ground of newly discovered evidence must be reversed. The affidavit of defendant is clearly insufficient. All he says is that after the trial he found a check which he had paid to plaintiff and had not produced or proved on the trial. He does not show that he made any search before the trial, or give any reason why he did not find it. He does not even say that it was paid on account of the debt for which he was sued.
Order reversed, with costs.