Pike v. Evans

| N.Y. Sup. Ct. | May 15, 1818

Per Curiam.

The ground's on which an application for a new trial in this case is made are,

1. That the verdict was against the weight, of evidence.

2. That the contract proved is materially different from the one declared upon.

3. On the ground of newly-discovered evidence.

With respect to the first point, the verdict is warranted not only by the weight of evidence, but a contrary verdict would have been against the positive and direct testimony of one witness. The contract between the parties was, that the clothes in question were to be made, and sent on to Sachet's Harbour, by the stage that would arrive there, according to the course of the stages, on Tuesday, the 1st of November, 1814; and the material question, as it would seem from the judge’s charge, was, whether they were left at the stage-office in Utica, in season to be sent on according to contract. One witness swears positively, that the defendant, on being asked whether he sent them on by the time agreed, answered, “no; but he sent them" the week following.” There are, to be sure, some circumstances stated by the defendant’s witnesses, which render it somewhat questionable, whether this witness could be correct. Though it was on Friday, the 28th of October, when the plaintiff first spoke to the defendant about making the clothes,' yet the proof is pretty strong to show the clothes were left at the stage-office on Saturday evening, which must have been the next day, or Saturday, of the ensuing week. This, however, was a question fairly submitted to the jury, and we cannot think it fit and proper to set aside the verdict on this ground.

2. With respect to the alleged variance, admitting it to be well founded, the objection should have been made on the trial, and the defendant comes too late now to call that in question.

3. The newly-discovered evidence is material to make out the delivery of the clothes by the time agreed on, and the only objection to granting a new trial on this ground is, that it is merely cumulative testimony. This must have been known to the defendant to be a material question on the trial. The newly-discovered evidence does not relate to any new fact; and it has been repeatedly decided by this court, that a new trial ought not to be granted, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted on the former trial. (2 Caines, 129. 8 Johns. Rep. 86.) The motion for a new trial must, accordingly, be denied.

Motion denied.