Reich v. McCrea — 26 N.Y. St. Rep. 926

Majority

p. 926

Alonzo Reich, App’lt, v. Alice S. McCrea, Resp’t.

(City Court of New York, General Term,

Filed October 3, 1889.)

Headnote

New tbial — Should not be gbanted on affidavits of ebbob and manifest injustice.

In cases of error or manifest injustice a new trial can only be granted

p. 927

upon an appeal from the judgment; it cannot he granted on motion by a judge other than the one who tried the cause.

(Knapp v. Post, 10 Hun, 35 , followed.)

This action was brought to recover the sum of $1,000, the amount of a loan alleged in the complaint to have been made by plaintiff to the defendant on or about the 21st day of February, 1889.

The answer was a general denial. The action was brought on for trial before Justice Ehrlich and a jury on the 14th day of June, 1889. At the comm'encement of the trial, on motion of plaintiffs 'Counsel, the complaint was amended by stating the time of the making of the loan to be on November 17, 1888, instead of February 21, 1889. No objection was interposed to the amendment by defendant’s counsel, and the trial proceeded upon the complaint •as amended, and upon the original answer of general denial. After the testimony was closed the same was submitted to the jury, who rendered a verdict in favor of the plaintiff for the amount claimed. Upon the rendition of the verdict a motion was made by defendant’s counsel, before Justice Ehrlich, for a new trial, •etc., which motion was denied, and an order made denying said motion. No appeal was taken from said order, and it does not .-appear that any subsequent application was made to Justice Ehrlich, the trial justice, for an order granting a new trial.

On the 21st of June, 1889, upon the application of defendant’s counsel, and upon the affidavits of defendant and of Clarke Bell, Esq., her attorney, an order was granted by Chief Justice McAdam requiring the plaintiff’s attorney to show cause before a justice of this court, on the 26th day of June, 1889, why an order should not be granted setting aside and vacating the judgment entered herein and granting a new trial, etc. The motion was heard before Chief Justice McAdam on the said affidavits of defendant and her attorney, and upon the opposing affidavit of Abram Kling, Esq., plaintiff’s attorney, and, after the hearing of said motion, on the 10th day of July, 1889, an order was made by Chief Justice McAdam granting a new trial upon payment, by the defendant, to plaintiff’s attorney, of all the costs in the action to date, without costs of motion, within ten days from notice of entry of the said order. From this order plaintiff appeals.

Abram Kling, for app’lt; Clarke Bell, for resp’t.

From an examination of the proceedings upon the trial before Justice Ehrlich, and of the affidavits used upon the motion before Chief Justice McAdam, it seems that in furtherance of justice, and in order to allow an opportunity to the defendant to present a full defense before a jury, which she claims she was deprived of upon the trial before Justice Ehrlich, by reason of her sudden illness during the trial, and by reason of the over confidence of her counsel, and to correct any error or manifest injustice, that the order appealed from should be affirmed; yet, following the ruling of the general term of the supreme court in Knapp v. Post, 10 Hun, 85 , it is clearly our duty to reverse the order.

p. 928

In the case above cited a similar question arose; a motion for a new trial had been made upon the minutes of the justice before whom the action was tried and by him denied. Another justice having entertained and granted another motion to set aside the judgment on the ground of “ error and manifest injustice,” it was held to be error, and that a new trial can only be granted in such cases upon an appeal from the first order.

In that case, Gilbert, Justice, in his opinion at page 36 says-. “We are of opinion that the proceeding is altogether erroneous. It was nothing more than a retrial of the "cause upon affidavits. ' If the practice here pursued should be authoritatively established,, few verdicts would stand. It costs defeated parties little effort to show by ex parte affidavits that their defeat is attributable to error' and manifest injustice, rather than their own neglect and mistakes, and it is far easier to get rid of a verdict and judgment in that way than by apjieal. But the law does not allow such a practice. * * * The last motion was simply an appeal from Judge Barnard to Judge Dykman; unless, indeed, ' error and manifest injustice, in a judgment may be shown by affidavit, which, as already said, the law does not allow. The remedy of the party injured by such error and injustice is by appeal.” See Code, § 1002,. as amended in 1884.

Following the ruling in the case above cited the order appealed from must be reversed, with costs.

Nehrbas and McGown, JJ., concur.