73 N.Y.S. 88 | N.Y. App. Div. | 1901
The surrogate’s authority to grant a new hearing for newly-discovered evidence is given by subdivision 6 of section 2481 of the Code of Civil Procedure. It is to be exercised “ only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers,” and upon an appeal this court has the same power as the surrogate, and his determination must be reviewed by this court as if an original application were made to it. (See same section.)
One of the elementary principles which govern applications of this kind is that the moving party must make it appear that the new evidence sought to be introduced could not with reasonable diligence have been obtained upon the trial. Such motions are not enter
In this case the charge against the executors was that, owing to. their testator’s neglect to collect, when due, a $600 note against "William and Henry Kelly, the McKnight estate had been injured to that amount and interest. It was conceded that such testator had made no attempt to collect the note until some eighteen months after it became due, although he held it at that date as an asset of such estate. And as administrator thereof it was his duty to act with promptness and diligence to preserve the same. Manifestly, the first question that would suggest itself to them in meeting such a charge would be whether, when such note became due, and during the eighteen months’ delay,' it could have been collected had their téstator made an effort to do so. In other words, were William and Henry Kelly, or either of them, pecuniarily able to pay it ? On the trial the administrator de bonis non of the McKnight estate gave evidence to show that such an attempt would have been successful ; that within six or eight months after the note became due several thousand dollars were collected through legal process against the Kellys by other parties. Ho evidence whatever .was given by the executors against this showing. They made no excuse for the delay on their testator’s part — no effort to dispute the fact that during that eighteen months of delay other creditors collected much larger demands. On such a state of facts the decree was rendered. After the lapse of about two years they come into court and say that they have since the trial discovered that Henry Kelly will testify that he and William Kelly were insolvent and unable to jrny .the note at the time of its maturity. Also, that he will testify that the Ella A. Gregory judgment, which was one that was collected during the eighteen months’ delay, was not paid by him, and that he does not know who paid it. Also, that he did not pay the. Standard Varnish Works judgihent that Was shown upon the trial to have been then collected, but that it was paid by a third party, in whose interest the obligation had been incurred by the Kellys. They present the affidavit of Henry Kelly to that' effect, and he also swears that since December, 1891, he “ has been mainly out of the state,” and that “ prior to December, 1900, he was continuously out of the state for about a year.” In opposition to this claim of
Now, it is plain that the question of the Kellys’ solvency was one that presented itself at the very outset, and was the one upon which their testator’s liability for this note principally turned. These executors could as readily have ascertained what Henry Kelly would say upon that subject during the many months that this trial was pending as they did during the two years after it closed. The absence of Henry Kelly for a year continuously prior to December, 1900, was immaterial. It was all after the trial closed. The statement that since December, 1891, he was “ mainly out of the state ” is so indefinite as to amount to an evasion. If he was absent all of that time up to July, 1897, it would not affect this question. On the evidence before us we must conclude that Henry Kelly could have been easily found within the city of Albany and the same information obtained from him during the trial as has since been obtained. It is apparent that the executors until after the trial Closed did not make the slightest effort to ascertain from either Henry or William Kelly their financial condition during the period when their testator should have collected the note. Indeed, it would seem that they made no effort to ascertain it from any source, or ■ else that they were utterly unable to ascertain that there was any excuse for not collecting it. They made no offer on the trial to show any. In view of this omission to do what appears to have been then.’ plain duty during the trial, it is a late day to make this application two years after the trial.
Moreover, ought the new evidence sought to be introduced to change the result ? Henry Kelly will testify that when the note became due both he and the maker were insolvent. Tet the fact remains that executions on two judgments, each of $1,143.07, recov
Their testator, having this note in his possession on July 1; 1890, when it became due, as an asset of the McKnight estate, made no attempt to collect it until eighteen months had elapsed. During that period other creditors, by mere process of law, so far as it appears, collected .many times.-its amount from the makers thereof, notwithstanding the fact that they were, when it became due, actually insolvent. Such is the case which the defendants now ask to present. It is to be noticed that Harrigan, their testator, had never filed any account of his proceedings, although he had been acting administrator for more than four years, and did not die until some years after the note became due. This neglect on his part may render it more difficult to explain why he so long delayed his attempt to collect it, but it should not operate as an excuse for such neglect.
I am of the opinion that a proper -case was not presented by the executors for opening this decree and granting a new trial as- to the item in question, and that so much of the order as so directs should be reversed.
All concurred.
Order appealed from reversed, with costs.