17 N.Y.S. 867 | N.Y. Sup. Ct. | 1892
Lead Opinion
The plaintiff brought an action of replevin against the defendants for the recovery of possession of certain personal property claimed by the plaintiff to belong to him, and which had been levied upon by the sheriff under an attachment issued at the instance of the defendant Meyer. The question at issue in the case was the validity of a certain bill of sale given by Christine S. Ferine to the plaintiff on the 8th of July, 1889, covering the stock of merchandise in the business of Mrs. Ferine, including likewise outstanding accounts, bills receivable, and the good-will pertaining to said business. Upon the trial, a verdict was directed upon the evidence of the plaintiff and his own witnesses, including that of his attorney, upon the ground that the giving of said bill of sale was one transaction with the giving of the deed of certain premises in Staten island, and the giving of certain other bills of sale, and the giving of certain mortgages by the said Christine S. Ferine to the plaintiff, as trustee for plaintiff, and one Charles E. Bycroft and Sawyer & Manning, in liquidation, and Sawyer, Burt & Manning; and that the entire transaction was a scheme of Ferine’s to convey all her property in trust for creditors, which, not being in accordance with the law of this state as to the making of voluntary assignments for the benefit of creditors, was void. Plaintiff now claims to have been surprised at the direction of a verdict, and asserts that the point upon which the action was decided was not raised by the pleadings, and that plaintiff’s counsel was led to believe that the defendant’s defense was that the bill of sale was given without any substantial consideration, and was a fraudulent attempt to put the property out of said Ferine’s hands, so that the creditors could not get at it. Belying upon this supposed defense of defendants, plaintiff claims that he did not deem it necessary to examine certain witnesses in order to bring out certain facts upon the trial, which would have an important bearing on the construction of the evidence which was actually taken. In addition, plaintiff claims to have four witnesses, whose affidavits are used upon the motion, from which it is claimed that, if a new trial was had, plaintiff’s testimony upon the former trial, as thus supplemented by these four witnesses, would necessarily lead to a different result. The counsel for the defendants, in answering, asserts that he stated on the trial that he intended to impeach the bill of sale as being in fraud of law and fraud in fact.
It will thus be seen that in many respects the question here presented is similar to the one that was passed upon in Emmerich v. Hefferan, 53 N. Y. Super. Ct. 98. There the action was tried by plaintiff’s attorney upon the theory that it was only necessary for him to prove, in order to entitle plaintiff to judgment, that certain conveyances were made without consideration, and were made at the time the indebtedness to the plaintiff was in existence, The judge before whom that case was tried held that that was not sufficient, and dismissed the complaint, for the reason that no fraudulent intent was proved. On the motion for a new trial, and upon appeal, the case of Bank v. Kidder, in 50 N. Y. Super. Ct. 250, was referred to and cited with approval. In that case it was held that “to grant a party a new trial, after such determination, in order to enable him to prove what, upon the first trial, he considered and treated as immaterial and irrelevant, though involved in the issues, would not be sanctioned by authority, but, on the contrary, would establish .a dangerous precedent, for in every such case the party must be held bound by the course pursued by his counsel.” If the rule were otherwise, all a defeated party would have to do in order to obtain a new trial would be to ¡retain a new counsel, and start a new theory. ” Again, as stated in Grupe v. Brady, supra, which was an action in which, as here, both an appeal was taken from the judgment, and a motion made for a new trial, on the ground of surprise and newly-discovered evidence, it was said: “The evidence claimed to have surprised the plaintiff was principally brought out by defendant’s counsel on the cross-examination of the plaintiff and plaintiff’s witnesses. Towards the close of the case the plaintiff’s counsel introduced evidence in rebuttal, .but in doing so he did not in any way indicate that he
Lawrence, J., concurs.
Concurrence Opinion
(concurring.) This action was brought to replevy certain goods which had been attached by the sheriff under an attachment issued in favor of the defendant Meyer and against the party from whom the plaintiff derived title. The defendant, by his answer, denied ownership in the plaintiff, and set up his process as a justification. Upon the trial of the action evidence was introduced showing that the giving of a bill of sale of the property in question to the plaintiff was part of a transaction which was a scheme on the part of the defendant in the attachment to convey all her property in trust for creditors in a manner in violation of the laws of the state in reference to voluntary assignments for the benefit of creditors, and was therefore void; and, a motion having been made that the court direct a verdict in favor of the defendant, such motion was granted. The trial was in March. In the succeeding May the plaintiff made his motion for a new trial upon the ground of surprise and newly-discovered evidence. It seems to us that it took the plaintiff altogether too long to get surprised to justify the court in granting the motion for new trial upon that ground. If any surprise occurred at all, it occurred upon the trial, and it is admitted that the surprise consisted in the point which was taken upon the motion to direct a verdict by the defendant’s counsel. If the plaintiff desired then to be relieved from the condition in which he found himself, he should have moved for the withdrawal of a juror, and a postponement of the trial. But, after having been surprised at the position taken by defendant’s counsel, he could not speculate upon what the decision of the court was going to be upon that motion, and then claim, in addition to the surprise at the ground which the defendant’s counsel took, that he was surprised that the court decided the question according to law. It appears conclusively from the record that the plaintiff was surprised at the decision of the court upon the facts presented, and not in the slightest degree by the nature of the evidence. As already stated, it took him too long to get surprised, even at the decision of the court, to entitle him to any relief upon that ground.
But it is urged that the motion is also based upon newly-discovered evidence. An examination of the record would seem to show that the principal ground for which a new trial is desired is to allow witnesses who have already been sworn to revise their testimony because, upon reflection and consideration and talking with other people, they have come to the conclusion that they were mistaken somewhat in the sequence of events. Ho new trial