50 N.Y.S. 618 | N.Y. App. Div. | 1898
The action was brought to recover for money had and received by the defendant to the use of Henry Thompson, the plaintiff’s intestate. The sole defense was payment. " The case has been twice tried. Before -the first trial • the defendant, pursuant to. an order of" the court, served, a" bill of particulars of the times of the various payments to the intestate and the amount of each. Upon
The defendant also testified that the larger portion of the money which" Thompson gave- to him he put in his safe, and that he paid it to Thompson from time to time as Thompson sent for it. There was no suggestion upon the trial, by him, that he gave the money to anybody else to take to Thompson, except what he gave to one Quinn, who was a witness and testified to certain payments. It
It is said that the fault was not that of the defendant, but that of his attorney. If the attorney for the defendant neglected his duties, the remedy is not to be sought at the expense of the plaintiff, but the defendant must recover his damages for such neglect of the person who was guilty of it.
But, passing that point, there is another fatal objection. to the granting of this motion. The existence of the evidence of the checks, and the fact that it could be procured, was known to this defendant at the trial. He so testifies. The evidence of Andrews certainly came to his notice within a day or two after the trial. Yet, with the knowledge of the existence of what he calls newly-discovered evidence, he moved for a new trial upon the minutes, and upon that being denied he allowed this case to stand without taking any step whatever until December, 1891. It is a well-settled rule that one who desires to move for a new trial upon' the ground of newly-discovered evidence must do so as promptly as he can, and an unexplained and unnecessary delay is fatal to his motion. The delay here was clearly unnecessary, is entirely unexplained, and, for that reason also, the judge erred in granting this motion.
The order for a new trial should, therefore, be reversed, with costs, and the motion denied, with costs.
Yan Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
, Order reversed, with costs, and motion denied, with costs.