9 N.Y.S. 327 | N.Y. Sup. Ct. | 1890
Lead Opinion
The motion upon which the order was made was treated by the learned judge at special term as a motion for a new trial on the ground of newly-discovered evidence; and such it was, to all intents and purposes;
The action was for assault and battery; and the question chiefly litigated, as we may infer from the papers used on the motion, was of the extent of the plaintiff’s injuries. The newly-discovered evidence on that question which is proposed to be added to the defendant’s case is that of one Jeanette Stevens, a sister of the plaintiff, to the effect that the latter, with the aid of a physician, before and at the time of the trial, feigned serious injuries which did not exist. This evidence is propounded by the petition of the defendant used on this motion, to which is attached a copy of an alleged affidavit of Mrs. Stevens. That affidavit, if made as alleged, seems to have been extrajudicial. It was not made or entitled in this action; and a copy, only, is attached as an exhibit to the moving papers. In this form, it could betaken neither as proof of tile facts stated therein, nor that the proposed witness would testify to such facts on another trial of the action.
There is another feature of the case presented by the moving papers to which importance seems to be attached in the opinion at special term. It seems that, some time after the affidavit of Mrs. Stevens was made, a copy of it was published in a newspaper of the vicinity, and that, the plaintiff having brought an action of libel against the defendant for such publication, the defendant pleaded in justification the truth of the alleged libel, and had a verdict in the action. Of this result the opinion at special term remarks that it apparently establishes the truth of the statements made by Mrs. Stevens. But the pleadings in that action, which are attached to the moving papers in this record, show that the defendant, both by general and specific denial, put in the issue the fact of publication by him, and averred that the alleged libel was published by the procurement and consent of the plaintiff himself. The verdict was general; and it is, therefore, impossible to say whether the jury found the justification established, or that the defendant was not chargeable with the publication of the libel. We think the granting of the motion for a new trial, on the papers contained in the record before us, was error for which the order must be reversed, but without prejudice to the defendant’s renewal of his motion, on the ground’of newly-discovered evidence, on a case made and settled for that purpose.
Macomber, J., concurs.
Dissenting Opinion
(dissenting.) In September, 1881, the plaintiff brought an action against the defendant to recover damages for assault and battery. Is
The learned counsel for the plaintiff insists that a new trial cannot be granted on the ground of newly-discovered evidence without a case showing that it is not cumulative. It is true that this is the general rule, for obvious reasons; but the papers show, with reasonable certainty, that no evidence was given on the trial on the subject of fraud or conspiracy. The defendant’s petition shows that he had no information on those matters at the time of the trial. The plaintiff’s affidavit not only omits to deny this allegation, but it alleges that he never heard anything on that subject until after the affidavit of Jeanette Stevens. It is obvious, therefore, that no evidence could have been given on that subject on the assault and battery trial, as neither of the parties ■ever heard of it until long afterwards. The object of a case is to show what ■occurred on the trial; but, when it affirmatively appears that both parties agree that no evidence of the kind for which a new trial is granted was given, a case would be useless. It does not appear that any objection was made at the hearing of the motion on that ground. It was, therefore, waived, even if it would be material if taken. In re New York, W. S. & B. R. Co., 35 Hun, 575; In re Cooper, 93 N. Y. 507. Where specific objections are made, all not specified are waived. Marston v. Gould, 69 N. Y. 220. The reverse is true when the objection is general. All errors are waived except such as could not be obviated. Quinby v. Strauss, 90 N. Y. 664. The verdict in the libel ease may have been reached on some ground not involving the truth of the alleged libel; but the defendant’s petition shows that Jeanette Stevens was sworn as a witness on the libel case, and gave evidence tending to show the truth of
The remarks of the court in the opinion at special term as to what occurred' at the trial are not material. The court does not mention what occurred at the trial as the basis upon which he grants the application, but as a mere historical reference as to what took place when the case was tried before him. The ground of the decision is based exclusively upon the papers before him on the motion.
The learned counsel for the plaintiff suggests that the words in the order, that a new trial is granted upon the ground of fraud, would amount to an adjudication against the plaintiff on another trial. This is a misapprehension. The order cannot be treated as an adjudication on the merits. If the form of the order is such that it may be prejudicial to the plaintiff, no reason is seen why application could not be made to the justice granting it for a proper settlement. The order should be affirmed, with $10 costs and disbursements.