14 N.Y.S. 432 | N.Y. Sup. Ct. | 1891
The purpose of this action was to set aside a bond and mortgage executed and delivered by the plaintiff to the defendant Blunck, and by hipi transferred to the Johnstown Bank. The ground upon which the action was sought to be maintained was that the bond and mortgage were obtained by the fraud of the defendant Blunck. The plaintiff alleged in her complaint that the defendant Blunck, with the preconceived design to cheat and defraud the plaintiff and her husband, made certain representations, which were set out and specified in the complaint; that, relying upon such representations, her husband entered into an agreement to purchase and purchased of the defendant Blunck 27 shares of the stock of the Chatham Publishing Company, and gave therefor his note for $2,500; that the plaintiff, relying upon such representations, joined with her husband in making and delivering the bond and mortgage in question to the defendant Blunck, as collateral security for the payment of her husband’s note,, which he gave for the purchase price of such stock; that.such representations were false and untrue, and known by the said defendant to be wholly false and untrue. The defendants denied the allegations of fraud. The principal question litigated on the trial was whether the defendant Blunck was guilty of the acts of fraud alleged, or any of them. The learned trial judge found “that the statements and representations made by the defendant Blunck to the defendant Roberts, in relation to the property of the 'Chatham Publishing Company, and as to its condition, and relative to the number of subscribers on said subscription list to the said newspaper, were in all material particulars true; and that there was no fraud or concealment perpetrated or practiced by the defendant Blunck on the defendant Roberts by which he was influenced or induced to purchase said twenty-seven shares of stock, nor was any fraud perpetrated upon the plaintiff by said defendant Blunck, by which she was influenced or induced to execute and deliver said bond and mortgage as collateral security for the payment of said note for twenty-five hundred dollars given by her husband to Blunck for the purchase price of said stock. ” An examination of the evidence contained in the appeal-book discloses that it was such as to fully justify the finding of the court that the defendant Blunck was guilty of no fraud which induced the purchase of the stock in question, or the execution and delivery of the mort
This leaves for consideration the propriety of the order denying the plaintiff’s motion for a new trial on the ground of newly-discovered evidence. To constitute a case for a new trial on that ground, it must appear that the evidence has been discovered since the trial, that it could not have been obtained upon the former trial by exercise of reasonable diligence, that the evidence is material to an issue involving the merits of the case, is not cumulative, and is so decisive in its character that there is a reasonable certainty that on another trial it would change the result. An examination of the affidavits read on this motion shows that they fell far short of these requirements. Moreover, affidavits of the newly-discovered witnesses, as, to what they will testify, were not produced. On such a motion, there should be an affidavit of the witnesses wiio will give the new evidence that they are ready to swear to the facts claimed to be newly discovered. Adams v. Bush, 1 Abb. Dec. 7. An affidavit that the witnesses told the party that they would so swear is not sufficient. Shumway v. Fowler, 4 Johns. 425. Judgment and order affirmed, with costs. All concur.