26 N.Y.S. 278 | N.Y. Sup. Ct. | 1893
It was settled by the decision made in Tracey v. Altmyer, 46 N. Y. 598, that a motion may be made at Special Term for a new trial on newly discovered evidence after the entry of judgment.
In Fisher v. Corwin, 35 Hun, 253, it was held that laches would defeat such a motion. In that case the delay was four years, and it appeared that the party seeking relief had appealed to the General Term, where a new trial was ordered, unless the plaintiff stipulate to reduce the damages. The stipulation was given and the judgment as modified was thereupon affirmed; under the circumstances of that case it was held the motion was too late inasmuch as “ four years elapsed from the time of the entry of judgment to the making of the motion.” ’
In Carpenter v. Coe, 67 Barb. 411, it was held that such motion is addressed to the discretion of the court, and that the discretion to be exercised must be guided and governed by legal principles and controlled by established authorities. See opinion and cases therein referred to.
It appears the referee determined the issues of fact, upon conflicting evidence, against the defendant, and in reviewing the decision made by the referee in the General Term, it was said in the opinion of Hbbwiu, J., viz.: “ It is, however, claimed by the defendant that the finding of the referee is not sustained by the evidence; that the agreement was simply that Owens should pay $700 for the rent of the farm for the year, and that under this Owens became the entire owner of the crops. There was, however, direct evidence, in substance, that the agreement was as found by the referee. There was
It appears that Owens went into possession of the farm of the plaintiff, and that he held such possession under a written lease during the year 1885, and in the early part of 1886 an oral arrangement was made for the occupation of the plaintiff’s farm for that year, which was the subject of dispute on • the trial before the referee, and as to which there was conflicting evidence, and the newly discovered evidence relates to the terms of that new arrangement. On the 11th of August, 1886, Owens absconded, and on the twenty-sixth of August the plaintiff served a notice addressed to Owens, by “ delivering the same personally to Mrs. Richard L. Owens, the wife of Richard L. Owens, on the said farm; ” in that notice the