102 A.D. 398 | N.Y. App. Div. | 1905
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant, and has resulted in a verdict in favor of the plaintiff for $2,000. The motion for a new trial was made upon the minutes, and upon the affidavits of Francis R. Stoddard, Jr., Mary Smith, Mary Adams, Elizabeth Van Houten, Margaret Bradley, Theresa Westburgh, Wilhelm Schmidt, Gideon D. Hobart, M. D., Joseph Sehweinfest, Perley M. Codington, L. Orlinger, Mary Galligan and Isaac P. Smith, and these affidavits tend to show that the verdict of the jury, in so far as it related to the damages at least, was procured through perjury and subornation of perjury. The rule which should govern in considering a motion of this character is well settled. It must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it is material to the issue and goes to the merits of the case; that it is not merely cumulative, and that its character is such that it would probably have changed the result. (Kring v. N. Y. C. & H. R. R. R. Co., 45 App. Div. 373, 378, and authorities there cited.) And as was said by Allen, J., in Barrett v. Third Avenue R. R. Co. (45 N. Y. 628, 632): “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry
The order appealed from should be reversed, and the defendant should be given a new trial.
Bartlett and Jenks, JJ., concurred; Hirsohberg, P. J., and Hooker, J., dissented.
Order of the County Court of Kings county denying motion •for new trial on the ground of newly-discovered evidence reversed, and motion granted on condition that the appellant, within twenty days, pay all the costs of the former trial and of entering judgment, together with ten dollars costs of the motion; in default of compliance with this condition, judgment and order and order denying motion for new trial affirmed, with costs. If the condition is complied with, the judgment is vacated, without costs.