54 N.Y.S. 274 | N.Y. App. Div. | 1898
This action was commenced to recover for services as architect in superintending the erection of the Hotel Gerard, and. the plaintiff claimed on a quantum meruit 5 per cent, on the cost of the building. The defendant alleged an agreement to pay 2 per cent, on the cost. The trial took place in November, 1897, and it appeared that in October, 1893, the defendant requested the plaintiff to draw a contract between them, and the plaintiff thereupon caused to be made two typewritten drafts of the contract, one of which was handed to the defendant and the other to a Mr. Moore. The defendant testified that the draft contract handed to him contained the words "two per cent.,” and produced on the trial
It is urged that the motion was properly denied, because the evidence was cumulative, that it was merely an attempt to impeach the testimony of the plaintiff; and also upon the ground of laches. The rule which formerly obtained (for what reason has never been explained), that, where newly-discovered evidence was cumulative, a motion for new trial based thereon should be denied, has been, in furtherance of justice, virtually abolished. It seems to be apparent that newly-discovered evidence may be of as much importance-upon an issue as to which evidence has been already given as though no evidence upon that point had been adduced upon the trial. The-rule to be applied to such newly-discovered evidence, whether cujmulative or not, is, is it of such a character that it is likely to produce a different result upon a new trial ? In the case at bar the evidence is of the highest importance; as, if the jury found that this proposed contract was drawn by the plaintiff with the 2 per cent, inserted therein when he handed it to the defendant, it would certainly tend to show that the facts were not as testified to by him in respect to compensation; and it might very well be that, in view of this evidence, the jury would come to an entirely different conclusion from that which they reached when it appeared that this insertion of the word “two” might have been made, and apparently was made, by the defendant after the proposed contract had been handed to him.
It is further urged that the motion should be denied because the evidence simply seeks to impeach the testimony of the plaintiff. But the evidence in question is not impeaching evidence, within the meaning of the rule. Evidence impeaches a witness when it assails
The next question to be considered is the objection as to laches. It is urged that, after the plaintiff gave testimony in regard to the ■condition of this contract, it was the duty of the defendant to make a motion to postpone the trial, or to withdraw a juror for surprise. It is difficult to see upon what ground a defendant can withdraw a juror. Nor was there any ground for the postponement of the trial. The mere fact that a party is surprised by the evidénce of his adversary affords no ground for a postponement, unless he is able to show that he can produce contrary testimony, which, from the nature of the case, he was not bound to have present at the trial. In the case at bar the defendant knew nothing as to the origin of this draft contract, or the manner of its production, until it was sworn to by the plaintiff at the trial that Miss Fleming had copied the contract. He did not know what Miss Fleming’s statement would be in regard to it, and consequently had no ground whatever to move for a postponement of the trial. It is urged that it is too late to make such a motion after an appeal and the affirmance of a judgment. It is never toa late to-do justice; and where the ends of justice require that a new trial should be granted, the supreme court may act, although the case may have been in the court of appeals, and disposed of there.
We think therefore that the court below should have granted the motion for a new trial. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted upon payment by the defendant of the taxable costs in the action, except extra allowance. All concur.