103 N.Y.S. 194 | N.Y. Sup. Ct. | 1907
The action was for work, labor and services and material furnished. It was claimed by the defendant on the trial that the work was ordered through one Max Cohen, and that the defendant had paid said Max Cohen in full therefor, and in substance that there were no contractural relations known to defendant between the plaintiff and defendant. The plaintiff, on the other hand, claimed that Max Cohen was the plaintiff’s agent simply, and that he had no authority to receive payment for the work, labor and services and materials rendered. Max Cohen was not a witness on the trial, and the affidavits upon which the motion for a new trial was based excuse his absence. Cohen’s own affidavit used on the motion for a new trial shows that he was an important and material witness for the defendant. He states that he secured the order from the defendant; that he bought the material and did the work in connection with the plaintiff, and was financially interested in the transaction, and that the plaintiff was to receive only a commission; that he received payment for the goods and'paid the plaintiff for the material furnished, whereupon ho received a receipted bill which was turned over to the defendant. He also states that the plaintiff was paid for the material and work. The materiality of this testimony is apparent. Its probative force can be much better determined by a trial court than by the reading of affidavits. The appellant objects that the motion should have been denied in the absence of a settled
We do not decide on this appeal whether or not a printed case is necessary in the Municipal Court upon which to base a motion for a new trial on the ground of newly discovered evidence, preferring to base our decision on the absence of a timely objection to the hearing of the motion on affidavits.
The order appealed from should be affirmed, with costs.
Gtldersleeve and Davis, JJ., concur.
Judgment affirmed, with costs.