McCarthy v. Port of New York AuthorityMcCarthy v. Port of New York Authority
Thе question is whether defendant’s post-trial motion for a new trial of this personal injury negligence action was properly granted, after previous denial on the record of a similar motion. Supplemental evidence submitted after trial on the second motion established false testimony by plaintiff and his witnesses, which, if available on the trial, probably would have changed the result.
The order appealed from should be affirmed. The promptly-made motion was made in the action and, therefore, was not a collateral attack. The supplemental evidence was рresented to prove the falsity of testimony which unexpectedly established the critical importance of a secondary fact; the degree of diligence must be weighed against the high degree of apparent false testimony, its significance, and the resulting injustice. Moreover, a nеw trial probably would have been warranted, if not required, on the trial record alone.
Plaintiff, while a fire captain, claims to have been injurеd by a dangerous condition, in the nature of a trap, in a Port Authority building while attempting to locate a fire (cf. Maloney v. Hearst Hotels Corp.,
The evidence is undisputed that the door led into a boiler room. There were no stairs or ladder from the floor level at
This dramatic story was supported by the further testimony of the three men that wood smoke makes the еyes tear, and that the smoke and escaping steam was created by the burning of lumber partially sticking out of the open fire chamber of the bоiler. They asserted that the hot wood fire was reduced and the conditions alleviated by dropping the fire into the ash pit through movable grates, рushing the lumber into the fire chamber, and closing the fire chamber and lower draft doors. They said the grates were moved by a lever or handle on the outside of the fire chamber.
But a photograph of the fire chamber face which was introduced into evidence shows no lever or handle. The building maintenance foreman testified the grates were immovable. Defense witnesses testified there was no dense acrid smoke, wood fire, oрen doors or obscured visibility. They said plaintiff squatted down, jumped onto a coal pile, and fell on some wood, timber or a log in the coal.
Thе evidence in the trial record, especially when the significance of the unimpeachable photograph is appreciatеd, is probably sufficient in itself to support setting aside the verdict. Instead, the trial court on the record denied the motion, but informed the parties off the record that he would do something about the verdict if defendant could present definite, irrefutable evidence that the grates were immovablе. This would indicate that plaintiff and his fellow firemen concocted an exaggerated story, since it would show that there was no open wood fire that was dropped to alleviate the dense acrid smoke and steam which obscured plaintiff’s vision and contributed to his fall.
Ten days after the jury verdict and suggestion of the trial court, defendant moved on the basis of affidavits and exhibits which established beyond question that the grates were immovable. Actually, to empty the fire chamber, one used a long metal hoe.
The court has inherent power, not confined rigidly by well-defined rules, to set aside а verdict or vacate a judgment and order a new trial in the interests of justice (e.g., Ladd v. Stevenson,
The posttrial motion was made within 15 days from rendition of verdict, the time period required fоr a motion directed to the weight of the credible evidence (see CPLR 4404, 4405, formerly Civ. Prac. Act, § 549 and Rules Civ. Prac., rule 60-a). However, it presented additiоnal evidence. "While the additional evidence was corroborative, it was also, because of its conclusive character, evidence of a gross fraud upon the court. Since the additional evidence was available, or could have been made available by diligent effort, at time of trial, it probably would not suffice by itself, even though it would probably change the result, if it concerned only the merits (e.g., Stoddard v. Stoddard, supra, pp. 610-612; Grafton v. Ball,
Thus, the court should weigh the likelihood and degree of the false testimony, the affront to the court, and the probability of changing the result against the degree of diligence exercised by the moving party and the time and manner in which the new trial is sought (see Lando v. Murray’s Trucking Corp.,
Here the motion was based on irrefutable evidence. Without the exaggerated story of plaintiff and his witnesses, the jury might have returned a verdict for defendant. Though the additional evidence concerning the grates was available or could have been made available to. defendant, it had no reason to believe that plaintiff and the firemen would testify as grossly as they did concerning them. The motion was promptly made in the very action, and the evidence supplemented .evidence already in thе trial record. It certainly came as no surprise. Because it involved a secondary, albeit significant, fact, defendant was not likely to havе exhausted extraordinary methods or sources of corroborative proof that the furnace grates were
The precedents make clear that there is no hard-and-fast rule for the granting of new trials in the interests of justice. When the attack is collateral, long-delayed, or merely reflects a disappointed or ill-рrepared litigant’s second thought, a new trial is always denied. Where, however, there is clear evidence of a gross fraud practiced upon the court, the court has power and exercises it to nullify its own verdict or judgment, thus fraudulently procured.
Accordingly, the order should be affirmed, with costs to defendant-respondent.
Brbitel, J. P., MoNabby, Stevens, Stetteb and Bastow, JJ., concur.
Order, entered on March 19, 1962, unanimously affirmed, with $20 costs and disbursements to respondent.