229 A.D. 394 | N.Y. App. Div. | 1930
Plaintiff Czeslawa Bloch was injured by being struck by defendant Haller’s car on the public street while she was in the act of crossing the street upon the crosswalk. The claim is made, and the jury must have found, that the sole cause of that injury was the negligence of defendant Szczukowski in bringing his car into ■ collision with Haller’s car, thereby driving the latter against the plaintiff Bloch. Miss Bloch being an infant, and unmarried at the time of the accident, her father, Joseph Wisniewska, also brought an action against both defendants. The two actions were tried together and resulted in verdicts- against defendant Szczukowski alone for $7,800 in the infant’s action and $500 in her father’s action. Plaintiffs took no appeals from the judgments in favor of defendant Haller. Defendant Szczukowski appeals from both judgments and also from the order in each case denying his motion for a new trial on the ground of newly-discovered evidence.
The record made at the trial would warrant the verdicts rendered, and we find no errors in the record that would call for reversal of the judgments. However, the motions for a new trial should be granted.
The infant plaintiff could give no information about the accident beyond the fact that she was struck by an automobile on the street and awoke three days later in a hospital. So far as concerns the facts and circumstances of the accident, the entire case for the plaintiffs was made out by one Tyrpa, the only disinterested eye witness. After, the plaintiffs rested, the respective defendants were heard in their own defense and each gave evidence tending to cast the blame upon the other. Defendant Haller gave evidence which alone, if believed, would justify the verdict against the defendant Szczukowski.
Tyrpa being the only disinterested witness, we must consider the proof made to support the motions for a new trial. There are affidavits by defendant Szczukowski, his daughter, his son, one of his clerks and two attorneys, stating in substance that, after the trial, Tyrpa volunteered the information that he had
The law is well settled, to be sure, that a new trial will not be granted solely, to enable the moving party to impeach a witness (Croughan v. N. Y. Mutual Benevolent Soc. 179 App. Div. 211), even though the testimony of the witness sought to be impeached was the only evidence supporting the verdict (Corley v. New York & H. R. R. Co., 12 App. Div. 409), and it would seem that, the impeachment of Tyrpa would be a gratuitous and unnecessary proceeding. However, this rule does not apply in cases where the witness sought to be impeached gave evidence of intrinsic probative
The orders denying defendant’s motion for a new trial should be reversed on the facts in each case, and the motions granted, with costs to the appellant to abide the event.
The appeals from the judgments herein should be dismissed, without costs, as they have become academic in view of the disposition made of the motions.
All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ.
In each case: Order reversed on the facts and motion for a new trial granted, with costs to appellant to abide the event.
In each case: Appeal from judgment dismissed, without costs. The decision made upon the appeal from the order denying the motion for a new trial, filed herewith, makes the determination of this appeal unnecessary.