Moran v. Friedman — 69 N.Y. St. Rep. 74

Majority

p. 74

Bridget Moran, Resp’t, v. Harris Friedman, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 6, 1895.)

Headnote

New trial—Newly discovered evidence—Diligence.

Where the alleged newly-discovered evidence consists of the testimony of persons who are not eye witnesses, but only had conversation with the adverse party concerning the transactions, the moving party is not chargeable with lack of diligence in not obtaining such evidence before the trial, and the motion for a new trial will not be denied for that reason.

Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the ground of newly-discovered evidence.

p. 75

F. B. Taylor (Isaiah Fellows, Jr., of counsel), for app’lt; John Scanlon (James B. Stevens, of counsel), for resp’t.

One of the appeals above entitled is from a judgment entered in favor of the plaintiff, and against the defendant; and the other is from an order denying a motion made for a new-trial, upon the ground of newly-discovered evidence., Both appeals were argued together. Ordinarily, motions for new trial upon the ground of newly-discovered evidence will not be granted where such evidence is cumulative, or is merely to impeach the veracity of witnesses sworn upon the trial; neither will it be granted unless it can be seen that the newly-discovered evidence is of such importance as to admit the supposition that the result will be different from that of the trial previously had. Brady v. Industrial Ben. Association, 79 Hun, 156 ; 61 St. Rep. 360 . In this case the evidence was of such a character that a verdict by a jury for either the plaintiff or the defendant would not have been set aside as against the weight of evidence. There were only four witnesses to the transaction in question,—the plaintiff, the defendant, the plaintiff’s mother, and the man who accompanied the defendant to plaintiff’s house ; two witnesses on- each side, including the parties to the action, and their stories as to what took place were in direct conflict. Such being the state of the testimony upon the trial, it seems to me that there can be but little doubt that the newly-discovered evidence “ may produce a result different from that of the trial previously had.”

The new evidence is not simply to impeach the veracity of a witness. It goes further than that. It not only, if true, impeaches the veracity of the plaintiff, but impeaches the good faith with which the action is brought, to the extent of indicating that the charge made by her against the defendant is a trumped-up one. It has also been held that where the alleged new evidence is evidence that could, by the exercise of reasonable diligence, have been discovered and presented at the trial, the motion will be denied. Smith v. Rentz, 73 Hun, 195 ; 56 St. Rep. 128 . I do not see in this case that there has been any lack of diligence upon the part of the defendant. The newly-discovered evidence is not that of witnesses to the transaction in question, whose presence, and what they saw or heard, could have been ascertained by diligent investigation, but is that of persons who have had conversations with the plaintiff; and it is hardly to be expected that the defendant should make inquiries as to who among plaintiff’s neighbors had had conversations with her in reference to the transaction in question, and, except by such an investigation there was no method for the defendant to discover the evidence in question, except by some accident, such as happened in this case. It seems to me, therefore, that the defendant’s motion should not be denied upon the ground of a lack of diligence in not heretofore discovering the existence of the testimony he now desires to present. The ■order denying the motion for a new trial should therefore be reversed, and the motion granted.

The motion for a new trial being granted there is no occasion

p. 76

to investigate the appeal from the judgment. Upon the plaintiff’s stipulating thereto, the appeal from the judgment may be withdrawn, without costs of the appeal to either party. If the plaintiff refuses to make such stipulation, the defendant may enter a judgment of reversal, and for a new trial, with costs and disbursements of the appeal.

Order denying motion for a new trial reversed, and motion granted, with $10 costs and printing disbursements of this appeal.