Grupe v. Brady

Headnote

Motion for new trial at special term—when not granted.

Appeal from order made at special term, denying' plaintiff’s motion for a new trial.

The action was brought to recover a sum of money which the plaintiff alleged he had loaned to the defendant, upon the latter’s promise to repay the same on or before a certain day. Upon the trial of the issues, the jury rendered a verdict for the defendant. The plaintiff moved for a new trial on the minutes on all the grounds mentioned in section 999 of the Code of Civil Procedure, which

motion was denied. Plaintiff excepted to the denial, but no order was entered upon said motion. Subsequently a case and exceptions were made and settled, and upon them, as well as upon affidavits, the plaintiff moved at special term for a new trial. The motion was made on tire ground of surprise and newly discovered evidence, as well as upon the case and exceptions. The defendant interposed an affidavit in opposition to the -motion. An order was made and entered denying the motion, and the present appeal is from the last named order.

The court at General Term said :—“Passing over the objections of the respondent which are of a somewhat ■technical character, I think the motion was properly denied upon the merits. The exceptions were all untenable. The evidence claimed to have surprised the plaintiff was principally brought out by defendant’s counsel on the cross-examination of the plaintiff and of plaintiff’s witness. Towards the close of the case, plaintiff’s counsel introduced evidence in rebuttal, but in doing so, he did not in any way indicate that he was taken by surprise, nor did he move for the withdrawal of a juror, or the postponement of the trial for such reason. As to the alleged newly discovered evidence, it clearly appeared that it was cumulative, and that, with due diligence, it could have been readily procured for the trial.”