Ritter v. Phillips — 35 N.Y. Super. Ct. 388

Majority

p. 388

ADAM RITTER, Executor, etc., Plaintiff, v. SAMUEL PHILLIPS, et al., Defendants.

Headnote

Although judges of the General Term, on the hearing and determination of an appeal, were mistaken in assuming as a fact in the case, that a certain witness was in attendance at the trial, and could have heen called to contradict the testimony of one of the parties, yet it affords no sufficient ground for a re-argument, if it appears on the hearing of the motion for re-argument that the evidence of the witness would have heen simply cumulative.

It cannot he said that a party is surprised hy any evidence on a trial if he is prepared to fully meet and rehut the evidence.

Before Monell, Freedman, and Curtis, JJ.

Decided April 5, 1873.

Motion for the re-argument of an appeal from an order.

A motion was made at the Special Term for a new trial, on the ground of surprise and of newly discovered evidence, which was granted. Upon appeal to the General Term, the order granting a new trial was reversed.

The motion now made is founded on the allegation, that the court at the General Term was in error in assuming a fact which was not in the case.

The action was to foreclose a mortgage, and the controversy was whether the interest was six or .seven per cent. The plaintiff claimed that by an agreement ex

p. 389

tending tide payment of the principal, it was agreed that the interest thereafter should be at the rate of seven per cent.

The plaintiff had testified on the trial that Kreckler, the grantee of the mortgage, was present, when he (plaintiff) told him the interest was seven per cent. Kreckler and his wife, who were afterwards examined, testified that Kreckler was not present, but that "his wife was present with one Fitzpatrick.

The evidence of the plaintiff was alleged to be a surprise.

The court at General Term, in disposing of the alleged surprise, remarked that Kreckler, his wife, “ and the witness Fitzpatrick” were present when the plaintiff gave his evidence, and afterwards upon their examination, denied that Mr. Kreckler was present when his wife paid the interest.

It is now averred that Fitzpatrick was not present or examined on the trial.

Mr. Frost, for the motion.

Mr. Porter opposed.

It was undoubtedly a mistake in assuming that Fitzpatrick was in attendance at the trial, and could have been called to contradict the plaintiff’s statement, that Mr. Kreckler was present when the interest was paid. It now appears that Fitzpatrick was not examined as a witness on the trial, and the affidavits state that he was not even in attendance.

But Kreckler and his wife were present at the trial and were examined as witnesses after the plaintiff had given his evidence. Mr. Kreckler testified that he was not with his wife when she paid the interest, and Mrs. Kreckler confirmed his statement, and added that it was Fitzpatrick, and not her husband, who was with her.

p. 390

It cannot "be said that a party is surprised by any evidence given on a trial, if he is prepared to fully meet and rebut it. That the defendants were prepared in this "case, is apparent from the fact that they did offer themselves as witnesses, and were examined and testified in rebuttal of the plaintiff’s testimony.

The evidence of Fitzpatrick, if he had been present, would have been to the same purpose, and therefore clearly cumulative.

This furnishes no reason for a new trial, and renders the misstatement of the fact of Fitzpatrick’s presence at the trial wholly immaterial.

This being the only ground for a re-argument of the appeal, the motion must be denied, with $10 costs.

Freedman and Curtis, JJ., concurred.