Sternfeld v. Williamsburg City Fire Insurance — 19 N.Y. St. Rep. 337

Majority

p. 337

Adolph Sternfeld et al., Resp’ts, v. The Williamsburg City Fire Insurance Co., App’lt.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

New trial—When motion made on ground oe newly-discovered EVIDENCE SHOULD BE GRANTED.

Where evidence has been discovered after a trial, which is not cumulative in its character, and is such as to indicate a probability that its introduction into the case would change the result of the litigation, and the-omission to discover it previous to the trial was not due to lack of diligence on the part of the moving party, a motion for a new trial on the ground of newly-discovered evidence should he granted.

Appeals from a judgment on the verdict of a jury, an order denying a motion upon the minutes for a new trial, and from an order denying a motion for a new trial on the ground of newly-discovered evidence.

O. E. Bright, for app’lt; W. W. Niles, for resp’ts.

The recovery in this action was for the amount of a policy issued upon the property of C. De Vulder, consisting of a stock of goods of the same description as the policy was issued upon by the Park Fire Insurance Company. The verdict was for the full amount of the policy, together with interest upon it. And the motion was made for a new trial upon affidavits similar to those which have been mentioned in the case of the same plaintiffs against the Western Insurance Company. The evidence which was discovered after the trial was in no sense cumulative, as that rule has been settled by the authorities. And it is of such a description as to indicate a probability that upon its introduction into this case it may change the result of the litigation. And as there was no want of diligence on the discovery of the evidence which it might have been anticipated would be produced by the plaintiffs themselves, or in making the application which was denied by the order, it follows that the order denying a new trial because of newly-discovered evidence should be reversed, with ten dollars costs and also disbursements, and the verdict and judgment should be set aside and a new trial ordered upon payment by the defendant of the costs of the trial already had. If such payment shall not be made within twenty days after notice of the adjustment by the clerk of the

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amount of costs to be paid, then the order, as well as the judgment, should be affirmed, with costs.

Van Brunt, Ch. J., and Brady, J., concur.