Whittaker v. New York & Harlem Railway Co.

Headnote

j¥ew trial on ground of surprise.

Appeal by defendant from order denying bis motion for a new trial, made at special term on affidavits, and upon the grounds of surprise and newly-discovered testimony.

The grounds upon which the motion was based are : (1) that the testimony of the plaintiff as to the amount of wages which he had earned prior to the loss of his right arm, was untrue ; (2) that the defendant’s counsel was surprised by this testimony of the plaintiff on the trial.

The court at General Term, said :—“It is doubtful whether when the defendant is apprised by the pleadings or nature of the case that the employment of the plaintiff and his compensation for it at the time of the accident, will probably affect the assessment of damages, and he has full opportunity to procure witnesses as to the facts, it can be said that the defendant was surprised by unfavorable testimony on the part of plaintiff. He was bound to anticipate that the testimony might be so much against him that it would be expedient or necessary to correct by witnesses any unfavorable testimony, whether it was unfavorable to a slight or to a great extent. The mere fact of false testimony is not ground for a new trial. Beyond this, the affidavits below, pro or con, leave it doubtful, or do not make it certain, that plaintiff’s testimony as to his wages was false in substance. The most certainty for defendant relates to the plaintiff testifying that he got $65 a week from Barnum. It is not certain that he did not mean that he had in all that amount from Barnum and others, at the time he received $35 from Barnum.”