34 Barb. 291 | N.Y. Sup. Ct. | 1861
Motions for new trials are addressed to the discretion of the court, whether based upon the weight of evidence, surprise, or newly discovered evidence, or the fact that the party has been deprived of his evidence by accident or other like grounds. (Judges of the
As a general rule, new trials will not be granted to admit newly discovered evidence merely cumulative in its character to that which was given upon the trial, or tb impeach the char
It is very evident that the plaintiff labored under a great disadvantage, if in truth the note is genuine, in not being able to produce it upon the trial. The principal witness had been and then stood indicted for its forgery, and the production of the note upon the trial of that indictment was necessary to a conviction, and its non-production upon the trial of this action, and its alleged loss, might well be used with great force in the impeachment of the witness as well as the note. It is equally clear that the highly respectable witnesses called to disprove the genuineness of the note, could not testify as satisfactorily to themselves, or to the court or jury, as they could have done with the note before them; and had the verdict been for the plaintiff, and the note subsequently brought to light, it would have been almost a matter of course to grant the defendant a new trial, with a view to the elucidation of the truth. In the cross-examination of their witnesses, the plaintiffs could not test the accuracy of their judgment by the note itself, and had not the means to convince them, by a deliberate examination of the signature, and questions properly put relating to the peculiarities of the handwriting, that it was genuine and not forged. The plaintiffs are without fault, and are guilty of no negligence in not producing the note at the trial, although not surprised, in the ordinary sense of that term. In practice, by surprise is understood that situation in which a party is placed without any default
Other cases may be cited, showing the liberality of courts
The case before us is peculiar in all its circumstances upon which the application is founded. It is not within any of the precedents cited, and is so peculiar that it can scarcely be expected to serve as a precedent for the future. The jury have not had the best means of arriving at the truth, the plaintiffs have been deprived without their fault of a very important piece of evidence differing in character from that which they gave upon the trial, and are now able by this newly discovered evidence to remove a very just ground of suspicion that rested upon their case. The case is important in amount, and in its result involves the character of the principal witness. The granting of a new trial does not reflect upon the merits of the defense, as it does not touch the merits of the action; and if the signature of the defendant
I am of the opinion that the proper development of the truth and the advancement of justice required a new trial to be granted, and that the order should be affirmed.
Bacon, Allen, Mullin and Morgan, Justices.]