135 Misc. 465 | N.Y. Sup. Ct. | 1929
This is a motion for a new trial upon newly-discovered evidence. There are certain well-established rules that must be complied with on a motion of this land. One of these
In this instance the rules applicable to a motion for a new trial have been substantially complied with, except the one requiring the evidence to be presented in the shape of affidavits of the witnesses themselves. It is not sufficient to present the affidavit of a party or his attorney stating what the witnesses will testify to. Such statements are hearsay. “ It has long been the rule in this state that a motion for a new trial because of newly discovered evidence must be founded on the affidavits of the newly discovered witnesses, unless it is shown that they cannot be obtained.” (Matter of Mayer, 84 Hun, 586, citing cases; Adams v. Bush, 1 Abb. Ct. App. Dec. 7; 2 Abb. Pr. [N. S.] 104; Shumway v. fowler, 4 Johns. 424; Holmes v. Roper, 10 N. Y. Supp. 284, 289 [4th Dept.]; People v. Moore, 29 Misc. 574; Armstrong Mfg. Co. v. Thompson, 88 N. Y. Supp. 151; Roberts v. Johnstown Bank, 14 id. 432.)
This requirement is a substantial one, since the court should have before it the testimony of the witnesses upon which the motion
The motion should be denied, with leave to renew upon proper papers within a reasonable time.
So ordered.