Dart v. Kudlich — 36 N.Y. St. Rep. 563

Majority

p. 563

Edward Dart, App’lt, v. Herman C. Kudlich, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

' 1. Malicious prosecution—New trial.

Plaintiff having recovered, in an action for malicious prosecution on a charge of making false entries in the books of a corporation, by his own testimony that such entries covered payments made for the company to one Y. for commissions at the latter’s request, a motion for a new trial was made on the ground of newly discovered evidence, being that of V. contradicting that of plaintiff. Held, that the motion was properly granted ; that such evidence was important for defendant, and bore directly on the issue.

2. Same—Laches.

An objection to such motion on the ground of laches is not well taken where the motion is made within a reasonable time after the proposed case is made.

Appeal from order granting a new trial upon the ground of newly discovered evidence.

Action for malicious prosecution on a charge of having made false entries in the books of a corporation and appropriating the monies so entered. On the trial plaintiff testified that such entries covered commissions paid to one Yogt for the company, at Yogt’s request, and that he had stated the agreement as to such commissions in the presence of Yogt and defendant, and a verdict was rendered in his favor. Thereafter the motion in question was made on a deposition by Yogt containing the new evidence, which contradicted plaintiff’s testimony.

E. P. Johnson, for app’lt; Lewis Sanders, for resp’t

This appeal comes before us under different circumstances from those which would surround it had not the motion for a new trial been heard and granted by the learned judge who presided at the trial at circuit. He necessarily was familiar with all the proceedings of the trial before the jury, and -could best judge as to what the probable effect of the testimony of Vogt would be in case it was produced before the jury, and he having come to the conclusion that the testimony bore directly upon the issue presented to the jury, and might change the result theretofore reached by them, should have great weight with the appellate court. He was familiar with the whole atmosphere of the case and was better able to form a judgment upon the question than this court can, having simply the bare record before it Hnless, therefore, there has been pointed out some error committed by the learned judge which appears with reasonable certainty, the order should be affirmed.

We have examined the case for the purpose of seeing whether or not the learned judge might have been mistaken in assuming that this evidence bore directly upon the issue. We think that he was entirely correct and that it was important evidence for the defendant, which, in view of the fact of the failure to deny the same upon the part of the plaintiff, would undoubtedly have great weight with the jury.

The objection raised in respect to laches does not seem to be well taken in view of the fact that the motion was made within reasonable time after the proposed case had been made.

Hnder all the circumstances of the case we think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

The time to comply with the order appealed from is extended until ten days after notice of the entry of the order of affirmance.

Brady and Daniels, JJ., concur.