Matthews v. Herdtfelder — 39 N.Y. St. Rep. 486

Majority

p. 486

Patrick Matthews, Res’pt, v. Jacob F. Herdtfelder et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

1. New trial—Granted after verdict—Code Civ. Pro., g 999—Recon-sideration.

After verdict for defendant was rendered and recorded, plaintiff made a motion for a new trial which was denied, but no order of the court signed or filed on the motion. Judgment having been entered for defendant, the plaintiff subsequently, on motion, obtained a re-argument of his motion for a new trial. Held, that there was no such final or absolute disposition of the motion for a new trial, as would deprive the judge at circuit of jurisdiction to reconsider his ruling.

3. Evidence—Admissions of liability by defendant.

In an action against partners for injury to plaintiff through a collision with one of their trucks, the court refused to allow plaintiff to prove that

p. 487

one of the defendants, at the instance of the other, had admitted the driver’s fault, and offered plaintiff a small sum in settlement. Held; error; as by its exclusions plaintiff was prevented from showing anything in reference to the conversation, and the court was not in a position to determine, under the distinctions made (as to privileged statements), whether the testimony was or was not admissible.

Appeal from an order made at circuit, granting a new trial to plaintiff after verdict against the defendants, who were partners, for damages for a personal injury alleged to have been sustained by plaintiff through a collision with one of plaintiffs’ trucks, driven by their employee. Upon the trial plaintiff offered to prove that one of the defendants had come to him at the procurement of his co-defendant, admitted the driver’s fault, and offered plaintiff a small sum in settlement. The court refused to allow the evidence to be given.

Thompson & Koss, for app’lts; G. W. Wilson, for resp’t.

—This is an appeal from an order made at circuit, and granting a new trial to the plaintiff after verdict in favor of the defendant, and under the following circumstances. When the verdict was rendered and recorded, the motion was made for a new trial under § 999 of the Code of Civil Procedure. The minutes made by the clerk state, among other things: “ Motion for a new trial denied.”

That was on the 18th of February, 1890. No order of the court was ever signed or filed on this motion. Judgment in favor of the defendant was entered by the clerk, as is usual in common law cases, on the 21st day of February, 1890. On the 25th day of that month the plaintiff asked for a re-argument of the motion, which was had, and on the 27th, being at the same term of the court, and the motion was granted, and an order duly and formally entered.

There was no such final or absolute disposition of the motion as deprived the judge at circuit of jurisdiction to reconsider his ruling. The term of the court had not expired, no final order had been entered, and he was at liberty, in furtherance of justice, to reconsider a mere formal ruling, and on being convinced of his error, to put the parties in a situation that justice might be done The fact that intermediate the trial and the motion for re-argument judgment had been entered, does not affect the question.

In the case of Voisin v. The Commercial Insurance Company, 31 N. Y. State Rep., 88, we held that an appeal to the general term from an order granting or refusing a new trial in an action tried before a jury might be taken, notwithstanding judgment had been entered against the appellant and the time to appeal, therefore, had expired; and our views in that case were sustained by the court of appeals, 123 N. Y., 120 ; 33 N. Y. State Rep., 160. Here, therefore, we have merely a decision announced without an order to make it obligatory or final; and while it was in that condition, the judge, convinced that he had committed an error, and while the matter was still before him, considered it his duty to recall his decision and make an order that would prevent a failure of justice.

p. 488

Passing from the question of power to make the order granting the new trial, and if we are to consider the grounds upon which it was based we would find no difficulty in sustaining it. Certain evidence was excluded. It consisted of admissions made by one of the defendants in an action in tort against two alleged joint tort feasors. The defendants were co-partners. One of them visited the plaintiff shortly after the occurrence and made certain state-, ments claimed to be admissions. Assuming they could not, standing alone, bind his co-defendant, the evidence offered was to show that the interview was had at the procurement of that co-defendant and it was sought not to show facts that would be privileged, on the ground that an offer to compromise cannot be made evidence of liability under the well settled rule of law; but as the learned judge says, “the plaintiff was prevented by the exclusion of the evidence at the outset from showing anything in reference to the conversations, and the court was not in a position to determine under the distinctions made (as to privileged statements) whether the testimony was or was not admissible.”

Order affirmed, with costs.

Van Brunt, P. J., and Barrett, J'., concur.