Queen v. Bell — 51 N.Y. St. Rep. 611

Majority

p. 611

Montgomery Queen, App’lt, v. George H. Bell et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 6, 1893).

Headnote

1. New trial — Newly discovered evidence — Affidavit.

A denial of a motion for a new trial on the ground of newly discovered evidence is proper when the affidavit used to support the motion contains no proof of facts but of admissions, or rather inferences from them, said to be contained in an examination of a defendant taken in supplementary porceedings.

2. Trial — Findings.

The fact that in response to plaintiff’s request to find, the judge made the following note; “Each of the written requests is to he marked refused, except so far as covered by the findings and conclusions signed and settled by me,” is not ground for a new trial.

Appeal from an order denying a motion by plaintiff for a new trial, made at special term, upon an affidavit and upon the case as settled.

H. B. Kinghorn, for app’lt; J. Stewart Ross, for resp’ts.

The first ground upon which the new trial was asked was that of newly discovered evidence. The affidavit used to support this was insufficient It contained no proof of facts but of admissions, or rather inferences from them, said to be contained in an examination of Bell, taken in proceedings supplementary to execution. But the examination was not produced. The facts intimated, rather than stated, were not of prevailing importance and some of them could not be given in evidence. It would appear that all that was relevant and that might have been proven could have been had upon the trial.

Another ground for asking a new trial was as follows:

In response to plaintiff’s requests to find, the judge made the following note; “ Bach of the within requests is to be marked refused, except so far as covered by the findings and conclusions signed and settled by me.” It would not seem necessary to grant a new trial for such reason. The merits were not involved. The mistake of form, if it were one, might be remedied by a motion to the judge himself, but, on the contrary, the plaintiff allowed the proceedings to go on to the settlement of the casé and did not ask that the judge should sign each request refused, etc. There seemed to be acquiescence in the action of the judge in respect of the requests of plaintiff.

Order affirmed, with costs.

GlLDERSLEEVE, J., concurs.