30 Barb. 655 | N.Y. Sup. Ct. | 1860
This case was tried before one of the justices of this court, without a jury, on the 25th day of October, 1858. On the trial it became a material inquiry whether the acts of the plaintiff in the tearing up and removal of some rails from a rail road, claimed by the defendant to form a part of certain premises demised to him by the plaintiff, constituted a partial eviction. The plaintiff, to avoid the effect of those acts, introduced evidence tending to show that the road had become useless, and that the defendant himself had previously taken up and removed a portion of the rails therefrom, and thus contributed to make it impassable. Although the defendant objected to the introduction of that evidence as inadmissible within the issues, he did not profess to be surprised thereby, but produced and examined his overseer and managing agent, to prove that such removal had not been made by him or his servants. After the testimony was closed on both sides, it was agreed between the counsel for the respective parties that written points should be submitted to the court. That arrangement was, however, not carried out till March or April, 1859. A decision by the justice was con
After a careful examination we are of opinion that the order must be affirmed. The motion concedes that the evidence introduced by the plaintiff was material to the issue, because it is in this view only that it can be important for the defendant to avail himself of the evidence he now seeks to adduce for the purpose of contradicting it.
The question then arises, whether he was excusable in not introducing it on the trial. It is a well settled rule, that a party is bound and presumed to know the general leading points which will be litigated in his case, and that he must procure all the evidence, which, with ordinary diligence, he might have procured, in relation to those points.
The reply to the matter pleaded as an eviction makes no allusion to the removal of the rails by the plaintiff, but alleges
These views dispose of the application as far as it is founded on surprise. It then remains to be considered whether any relief can be given, on the ground of newly discovered evidence. It is a settled principle, applicable to such motions, that if the newly discovered evidence consists merely of additional facts and circumstances going to establish the same points which were principally controverted before, or of additional witnesses to the same facts and circumstances, such evidence is cumulative, and a new trial should not be granted. (The People v. Superior Court of New York, 5 Wend. 127.) Applying this principle to the case under consideration, the motion was properly denied. The fact in controversy was whether the defendant had removed any rails before the acts of the plaintiff charged as an eviction, which are conceded to have been done in April, 1853. The evidence of the plaintiff on that point, was the testimony of two persons swearing to the fact of such removal on two different occasions in 1852, by workmen of the defendant under the charge of his overseer. One of them speaks as to one time and locality, and the other as to another time and place. The overseer was examined and sworn, and he testified on that subject as follows: “ There never was any rail removed from the road by the defendant’s men, to my knowledge. I was removing the earth from the rail road at the red bank, (which was one of the localities designated by the plaintiff’s witnesses above the chemical works,) to get at the road. I was examining the state of the road with a view of repairing it at that time, and did not take up any of the rails from the rail road below the chemical works, (the other locality referred to,) before July, 1854.”
This, while it shows that he was during a portion of the year 1852 employed at the localities referred to by the plaintiff’s witnesses, it fails to show that he was so employed at the times designated by them ; on the contrary, it appears clearly from his statement that he was not so employed on the last occasions specified, and the fair conclusion is also that he was not at the first.
Thomas F. Murphy speaks of being employed as a carman under Eemer, in carting machinery and sand in the neighborhood of the railway, in the months of April, May and June, 1852; that such work was completed in the month of June, and that all the men engaged therein under Eemer, together with Eemer himself, withdrew therefrom as early as June, 1852; and he adds, that when the men left, no rails had been taken up or removed. Hiram Shay shears to the same facts substantially, and to the additional fact, that after the completion of the job he examined the railway both above .and below the chemical works, and no portion thereof had up to that time been removed or taken up. William Mulhall swears that he worked under Eemer, in the employ of the defendant, from 1st May, 1852, to about the middle of December in the same year; that “ during a portion of said time he was work
It also appears by the affidavit of Shay, that there were many others employed upon the same work with him, and yet the affidavits of the other persons employed are not produced by the defendant.
If therefore it be conceded that the persons whose testimony is above in part given testify to the truth, and that the statements of the other parties are also true, yet their testimony is not of a different kind or character from that of Eemer adduced on the trial. Its tendency and effect are merely to give additional weight to the facts sworn to by him, and to “ reinforce the presumption ” raised by his evidence, that the plaintiff’s witnesses either were mistaken or swore falsely. ' It can therefore only be regarded as cumulative, and cannot be considered as establishing a new or distinct fact. It is conse-' quently insufficient to warrant a new trial. (The People v. The Superior Court, 5 Wend. 127, supra, S. C. 10 id. 285 and the cases cited. Gyot v. Butts, 4 id. 579. Fleming v. Hollenback, 7 Barb. 271.)
These views are sufficient to dispose of the defendant’s appeal. It may be proper, however, to add, that if we entertained a different opinion on the questions already considered, the motion was properly denied, on the ground that the-application was too late after judgment entered. The decision in that respect was in accordance with the practice since the adoption of the code, as established by the general term in this district, in the case of Harrison v. Lott (not reported.) Such also was the well settled rule before the code, except so
In any view of the case, the order made at special term was right, and must be affirmed with $10 costs.
Lott, Emott and Brown, Justices.]