39 N.Y.S. 1019 | N.Y. App. Div. | 1896
This is one of five actions brought upon various policies of insurance against the several companies which issued the same to recover the losses the plaintiff claims to have- sustained in consequence of the destruction by fire of a stock of cloths and clothing in the city of Buffalo on the 10th day of November, 1893.
This particular action was tried in the Buffalo Superior Court in February, 1895, and resulted in a verdict for the plaintiff.
At the same term a motion was made upon the minutes of the court for a new trial upon the various grounds specified in section 999 of the Code of Civil Procedure, which was denied, and judgment for damages and costs was entered upon the 5th day of April, 1895. Upon the twenty-ninth day of April an appeal was taken from such judgment and from the order denying the defendant’s
The more material portion of the newly-discovered evidence, which is set out in the moving affidavits,, was discovered as early as. March 1, 1895, and it appears to be more or less material to the. issues tried; but whether it is of such a character as to justify the-conclusion that it would probably have changed the result, could the defendant have had the benefit of it upon the trial, is somewhat; problematical, inasmuch as it appears that since its discovery two., additional actions have been tried, with the result that the plaintiff succeeded in' one of them and the defendant in the other. But, whatever view may properly obtain as to. this feature of the motion, we feel constrained to affirm the order appealed from, upon the ground of laches upon the part of the defendant, for it appears that this motion was not made .until Rovember, 1895, which was more than eight months after the additional evidence is claimed to have been discovered.- During this interim the defendant had had the opportunity, of weighing its effect upon the minds of the jury in the-two cases adverted to, and it was not until the second, of those cases, had been tried, and a result reached favorable to the defendant, that any effort was made to obtain a copy of the minutes of the evidence of the newly-discovered witnesses upon which to found the defendant’s motion. In the meantime the defendant had elected to appeal from the order' denying its motion for a new trial and from the"judgment entered thereon, and this appeal was argued at the General Term before the motion for a new trial upon the ground of newly-discovered evidence was brought to a hearing.
We do not overlook, the fact that there is. much in the evidence in this case to warrant the inference which the defendant seeks to draw therefrom; but, at the same time, we are reminded that it has-received careful consideration at the hands of an impartial jury, whose conclusion thereon the trial court found no occasion to disturb, and that the- same judge whc presided at the trial has likewise determined--that the newly-discovered evidence was not of such a character' as to justify him in granting a new trial. In view of all thé’Sé circtiinstances, but more particularly by reason of the defend
All concurred, except Haedin, P. J., not voting.
Order affirmed, with costs.