185 A.D. 103 | N.Y. App. Div. | 1918
The plaintiff also appealed from the judgment, and the Appellate Term affirmed the judgment and order on the same day. So far as appears no application was made to the Appellate Term for leave to appeal from its determination affirming the judgment, and no application was made to a justice of this court for such leave. In the notice of appeal to this court from the order, however, the plaintiff gave notice that he intended to bring up for review the judgment and the determination of the Appellate Term affirming it.
The plaintiff was a stockbroker doing business under the name of Frohlich & Co., and the defendant was one of his customers. On the 10th of September, 1917, the plaintiff closed out the defendant’s account by selling the securities he was carrying for the defendant. That left a balance of $362.71 owing by the defendant to the plaintiff and this action was brought to recover it. 'The amended answer joins issue on the material allegations of the amended complaint and contains three counterclaims: (1) For $350 for the conversion of 1,500 Russian ruble bonds; (2) for $200 for the conversion of interest coupons on the bonds; and (3) for $260 damages for breach of the brokerage contract, alleged to consist in the plaintiff’s failure to close the account out on the 29th of August, 1917, instead of on the 10th of September, 1917. The trial was before the court on the 28th of December, 1917, and resulted in a judgment on January 11, 1918, dismissing the complaint and in favor of the defendant for $580.30 “ on his counterclaims,” together with costs and disbursements. The record contains the evidence given on the trial of the action. On the issue arising on the amended complaint the plaintiff and defendant testified and certain letters were introduced in evidence. The plaintiff testified that on the 6th of September, 1917, a letter was written to the defendant calling for the payment of $400 on or before ten A. M. on September tenth to further margin the account, and notifying him that in the event of his failure to comply therewith the plaintiff would at that time sell for the defendant’s account, at the market, 13,000 Russian ruble bonds, that being the number plaintiff was carrying for defendant at the time; that the money was not paid and the bonds were sold accordingly, leaving the balance owing by the defendant for which the action was brought; that notice of the sale was given and demand of payment was made; that a few days before writing the letter of September sixth notice had also been given to the defendant by message by telephone to one Zorn, who had introduced the defendant to the plaintiff and who resided and had a place of business near that of the
The affidavits presented by the plaintiff on the motion to set aside the judgment .and for a new trial on the ground of newly-discovered evidence tend to show that on the 21st of January, 1918, which was ten days after the trial and entry of judgment, the plaintiff discovered unimpeachable evidence that the defendant received both the bonds and coupons as claimed by the plaintiff, and committed perjury in testifying that he had not received them; that plaintiff thereupon caused complaint to be made to the district attorney and witnesses were subpoenaed and examined before the grand jury on the 23d of January, 1918, and an indictment for perjury on account of the testimony given on the trial was presented against the defendant, on which a bench warrant was issued on that day; that the day before the indictment was found the defendant withdrew his funds from the bank with the exception of five dollars and that on the day it was found he removed from his former residence and has since been' a fugitive from justice, and that the defendant’s attorney, on the application of a sergeant of police, who had the bench warrant for the defendant’s arrest, denied knowledge of his whereabouts. The evidence tending to show the commission of perjury by the defendant and that he did receive the bonds and interest coupons consists of an affidavit made by said
We are of opinion that the trial court applied with too great strictness the ordinary rules governing motions for new trials on newly-discovered evidence. To the end that there may be finality to the judgments entered after trials it has become necessary for the courts to formulate and apply certain rules prescribing what must be shown to entitle a party to a new trial on the ground of newly-discovered evidence. The effect of those decisions is that ordinarily it must appear that the evidence was not and could not have been discovered in the exercise of reasonable diligence before
It follows that the determination of the Appellate Term should be reversed, with ten dollars costs and disbursements of this appeal and ten dollars costs and disbursements in the Appellate Term, and the order of the Municipal Court denying the motion for a new trial and to set aside the judgment reversed and the motion for a new trial granted, with ten dollars costs to the plaintiff.
Clarke, P. J., Dowling, Page and Merrell, JJ., concurred.
Determination reversed, with ten dollars costs and disbursements in this court and in the Appellate Term, and order of Municipal Court reversed and a new trial ordered, with ten dollars costs to the plaintiff.