85 N.Y.S. 801 | N.Y. App. Div. | 1903
This action, based iipon misrepresentation and fraud, was brought to procure the rescission , of a contract of exchange of properties entered into by the plaintiff and the defendant Mayfield, and the annulment and avoiding of certain transfers made by them, pursuant to the terms of the contract, and for a decree directing the defendant Mayfield to repay to the plaintiff the sum of $1,600 received by her as part of the consideration moving to her under the terms of that contract. The trial resulted in a decision in plaintiff’s favor, upon which a judgment was entered annulling the contract and the conveyance referred to and directing the defendants Mayfield and Philip H. F. Wiedersum to pay to the plaintiff the sum of $1,600 demanded in the complaint. That pleading alleged that defendant Mayfield was the owner of the premises conveyed to the plaintiff under the terms of the contract, and alleged the misrepresentations and fraud to have been made by the defendant Philip H. F. Wiedersum. When the case was moved for trial the attorney for the defendant Mayfield asked for a postponement of the trial on the ground that his client was ill, and there seems to be no dispute as to the fact that at that time she was physically incapacitated from attending the trial. The application, however, was denied and the issues were tried. Although the allegations of the complaint were silent upon the subject, the plaintiff’s proof tended to show that the defendant Mayfield was holding in her name the title to the property covered by the agreements in the contract as a “ dummy ” in behalf of the defendant Philip H. F. Wiedersum, and also tended to show that at the time Wiedersum was negotiating with the plaintiff for the exchange the defendant Mayfield so conducted herself
The defendants claim to have been surprised upon the trial, and this is an appeal from an order denying, the defendants’ motion for a new trial on the ground of surprise and newly-discovered evidence, as well as an appeal from the judgment entered against them. It is made to appear from the affidavits read in support of the motion that the defendant Mayfield can produce evidence upon another trial denying that she held title to the property in question for the benefit of the defendant Philip H. F. Wiedersum, and denying that she ever made any representations to the plaintiff as to her widowhood.
We are not unmindful of the well-settled rule that when one is surprised by evidence which he is not prepared to rebut he should request an adjournment, and if he fails, is not entitled to a new trial on the ground of surprise. (Messenger v. Fourth Nat. Bank of the City of New York, 6 Daly, 190; Glendening v. Canary, 5 id. 489 ; affd., 64 N. Y. 636; Baylies New Tr. & App. 531.) The rule, however, has unimportant exception, and where it is made to appear that a party has been misled by assurances given by the opposite party as to the issues which the case would involve, a new trial will be granted on the ground of surprise. It is held that, while it is true that no obligation rests upon parties or their "counsel to inform the opposite side in relation to such matters, they must avoid saying or doing what may have a direct tendency to mislead their opponent. (Chamberlain v. Lindsay, 1 Hun, 231; Rubenfeld v. Rabiner, 33 App. Div. 374, 378.) We think that the reason for this exception applies with even greater effect to the situation as presented by this record ; for here, when the parties were preparing to close the evidence, the court itself stated that he had not yet heard anything by which the defendant Mayfield was in any way connected with the issues. It is entirely probable that this indication of the view held by the court of the matters in controversy misled counsel for defendant Mayfield into a- belief that it was unnecessary for her to introduce any evidence tending to deny the evidence adduced by the plaintiff showing her connection with the case, especially as the complaint was silent on the subject and she had contended that without such allegation, fraud, based upon these facts, could not be considered by the court in determining whether the plaintiff was entitled to judgment.
Whilé it is by no means clear from the record in its present state that the defendant Philip H. F. Wiedersum, independently of his codefendant Mayfield, has made out a casé for a new trial on the ground of surprise, it seems to us that, inasmuch as the interests of the defendants under the judgment appealed from are so closely allied and so interwoven, justice demands that there should be a new trial as to all the defendants, if such disposition is made as to one.
The order, therefore, denying the motion for a new trial should be reversed and motion granted, costs to abide the event.
Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.
Order denying motion for new trial on the ground of surprise and newly-diseoveréd evidence reversed, and motion granted, costs to abide the event, and judgment vacated. •