| N.Y. Sup. Ct. | May 15, 1869
Present — Balcom, Boardman and Parker, JJ.
By the Court
Whenever a party moves for a new trial, on the ground of newly discovered evidence, he must present a case containing the evidence given on the trial, or the' substance of such evidence, with the. affidavits on which he relies. (See- rule 34.) The evidence, or the substance of it, given on the trial, should be presented, to enable the court to determine whether the newly discovered evidence is cumulative, or material, &c. (See People ex rel. Oelricks v. Superior Court of New York City, 10 Wend., 286.) No such case has been made in this action.
The defendant endeavored to prove on the trial that the plaintiff attempted to set fire to the grocery store, in which the insured goods were situated, by means of a lamp, about fifteen days before the fire that destroyed the goods. The lamp was found flaming. The witness, Crum, gave evidence that tended to show that the situation of the lamp was accidental. , He testified he was at the grocery store the evening the lamp flamed and burned unnaturally; that he was there administering comfort to the plaintiff’s family, on account of
How, the time at which the plaintiff’s child died was not material to the issue tried, or to that formed by the pleadings. Evidence to contradict Crum in respect to whether the plaintiff’s child was living and sick at the time the lamp flamed, would not go to the merits of the case ; and a new trial should not have been granted for newly discovered evidence that the child had died previous to the occurrence of the unnatural flaming of the lamp in the grocery. (See 10 Wend., 292.)
It is impossible to determine, from the appeal papers, whether the case contains all the evidence given on the trial respecting the flaming of the lamp. Whatever evidence there was on that question was given to create the belief that the plaintiff then attempted to burn the insured property, so that it might be regarded as a circumstance against him touching the origin of the fire that burned his goods.
I am of the opinion that the newly discovered evidence, respecting the time at which the plaintiff’s child died, is too remote from the issues in the case to warrant the granting of a new trial.
The case does not show,the evidence given respecting the quantity of goods burned; but it is asserted in the plaintiff’s points that fourteen witnesses were examined, on the part of the defendant, as to the quantity of goods before the fire, and at the time of the fire.
I think it is clear that all the newly discovered evidence on those questions is cumulative, and furnishes no ground for granting a new trial.
The pleadings, case and affidavits, taken together, show that the fire, which the plaintiff claimed to have burned the
The defendant’s 'attorney-affirms,-in'his affidavit, to the effect that-he'exercised due diligence in preparing for the trial of the action; that the testimony of Christopher Sharp took- him by Surprise, and that he was greatly surprised by the'testimony'given by Sharp, &c. But the evidence of that witness is riot set out in the case.
An important, strongly contested case is seldom tried without counsel, cri the one side or the other, being more or less surprised by the evidence' of' some witness ; but it does not follow that for such a reason a new trial should be granted.
I think, in this ease, greater diligence on the part of the defendant, by some agent or attorney, would -have enabled the defendant to discover previous to the trial, as far as is usually discovered, all evidence material to the issues in the action that has been discovered since the trial.
My conclusion" is, that sufficient facts were -not "shown for granting’ á" new trial, cri the gróund "of newly' discovered evidence, or for surprise ; and that the order granting a new trial should be reversed,- with costs, and that the plaintiff should have judgment' on the verdict in the action, with costs.
So decided.