1 Cai. Cas. 24 | N.Y. Sup. Ct. | 1803
This is a motion for a new trial, and comes before us on the ground of a discovery of material testimony since the trial of the cause. To see this, and judge whether it be material or not, it will be necessary to state the former testimony and nature of the suit.
It is assumpsit by Halsey, the plaintiff, against James and Samuel Watson, the defendants, as owners of the ship Chesapeake, founded on a neglect in not taking on board some tobacco, according to contract.
The witness, Heyer, who appears to have acted as agent for the plaintiff, states what the contract was, and the time * at which the tobacco was to be on board. This agreement appears^ to have been made on a Friday. The witness inquired of the defendant James Watson, when the tobacco should be sent down to the vessel. The answer was, “ Send it down as quick as possiblein consequence of which, it was sent the very next day.
From three witnesses it is shown, that the principal part of the tobacco was on the dock by eleven o’clock in the forenoon, and that the whole was ready to be put on board by three. These facts, then are established by three witnesses. The captain swears that, after 4 or 6 hogsheads had been brought, he requested the carmen not to bring any more, as there were appearances of a storm. This the principal
New trial refused.
The rule to be extracted from the cases on the subject of new trials, where evidence has been given on both sides, seems to be, that if the verdict be manifestly against the weight of ■ evidence, and will work injustice, a new trial will be granted. Berks v. Mason, Say. 264. Norris v. Freeman, 3 Wils. 39. Jackson v. Sternbergh, post, 162. If it be merely doubtful and
See also Jackson v. Sternbergh, 1 Cai. R. 162. Douglass v. Tousey, 2 Wend. 352. Keeler v. Firemen's Ins. Co., 3 Hill, 250. Eaton v. Benton, 2 Hill, 576. Smith v. Hicks, 5 Wend. 48. Astor v. Union Ins. Co., 1 Cow. 202. Jackson v. Loomis, 12 Wend. 21. Hollingsworth v. Napier, 3 Cai. R. 182. Carley v. Wilkins, 6 Barb. S. C. Rep. 557, 565. Esterly v. Co.*, 1 Id. 235, Fleming v. Hollenback, 7 Barb. S. Court Rep. 271.