Wheeling Corrugating Co. v. Armstrong — 97 N.Y.S. 960

Majority

p. 960

WHEELING CORRUGATING CO. v. ARMSTRONG et al.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

New Trial—Newly Discovered Evidence—Diligence. '

An affidavit for new trial on the ground of newly discovered evidence to be available must show that such evidence could not have been obtained on the former trial by the exercise of reasonable diligence.

[Ed. Note.—For cases in point, see voi. 37, Cent Dig. New Trial, §§ 205, 206, 210-214.]

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

Action by the Wheeling Corrugating Company against Charles R. Armstrong and another. From an order denying a motion for a new trial, defendants appeal.

Affirmed.

Argued before SCOTT, P'. J., and GIEGERICH and GREEN-BAUM, JJ.

J. J. Bennett, for appellants.

Robert Mázet, for respondent.

A new trial. is sought on the ground, among others, of the alleged discovery since the trial that the sum of $245.64 was paid to the plaintiff, instead of the sum of $126.68, as was claimed upon the trial by the plaintiff; the difference between these sums being greater than the amount sued for. The papers submitted fail to show that such evidence could not have been obtained upon the former trial by the exercise of reasonable diligence. The defendant Anderson in his affidavit states that, on November 2, 1905, he learned for the first time that he was a defendant in this action, but it appears from the opposing affidavits, without contradiction on his part, that he was present at the trial of this action which took place on October 30th last.

We are satisfied, after reading the papers submitted, that the motion was properly disposed of by the justice.

Order affirmed, with costs.