9 Daly 70 | New York Court of Common Pleas | 1880
No appeal lies to this court from a decision of the general term of the marine court, granting or refusing a new trial, on the ground of newly-discovered evidence. See the cases enumerated in Wheeler v. Hudnutt, New York Com. Pleas, G. T., Dec. 1, 1879.
The judgment, however, will have to be reversed for the eiTor of the court in directing the jury, under the defendant’s exception,,to find a verdict for the plaintiff. The fact that the plaintiff paid Wagner for the shop, after the satisfaction-piece had been filed, rested entirely upon the plaintiff’s testimony. It appeared, by the satisfaction-piece, that it was acknowledged on July 27, 1877, and was filed on the same day. The plaintiff testified that he bought the shop in June; that he examined the record; found the mortgage open; and that, before he paid the money, he examined again, and found the satisfaction-piece .on file, and the mortgage discharged; and that, when the mortgage was foreclosed, he had to pay $428 to get the property back again, which was the amount he has recovered, with interest, as his damages.
On his cross-examination,.he testified that he paid the money, after the satisfaction-piece was filed—in the latter part of June or July. This testimony left it uncertain when he paid the money; that is, it did not fix with certainty that it had been paid before the filing of the mortgage, on July 27, 1877.
This was the most material fact in the case ; for upon it the whole cause of action depended. The objection being taken, on the motion for a nonsuit, that it. was not shown that the plaintiff “ parted with his money on the strength ” of the satisfaction-piece, the plaintiff was again recalled, and testified that he paid the money because he found that the record y^as clear; that the satisfaction-piece was filed; and' that the mort
The judge below held that the conclusion of the court, in this case, did not depend upon a belief in the veracity of the plaintiff alone; but “was upheld by circumstances which placed an honest finding to the contrary wholly out of the question.” Upon the case, as settled and presented to us on the appeal, the fact of the payment of the money, and when it was paid, rested solely upon the plaintiff’s testimony, and, therefore, necessarily upon his veracity; and I find nothing in any other part of the testimony bearing at all upon it, much less upholding it by circumstances entirely independent of the plaintiff’s testimony. The judge further held that the question of submitting the evidence, as to that fact, to the jury to pass upon, was not raised by the exception taken; but it was expressly held in The Trustees of East Hampton v. Kirk (68 N. Y. 464), that, if it was error to take the case from the jury, the objection is available under a general exception ; and that a particular request to the judge to reconsider his decision and submit the question to the jury, is not necessary. I am of opinion, therefore, that a new trial must be ordered.
Van Brunt, J., concurred.
Judgment reversed, and new trial ordered, costs to abide the event.
An application for leave to appeal from this decision to the court of appeals was denied.