Aydinian v. Federated Graphics Companies

Civil Court of the City of New York

Aydinian v. Federated Graphics Companies

66 Misc. 2d 321, 320 N.Y.S.2d 599, 1970 N.Y. Misc. LEXIS 1273

CourtCivil Court of the City of New York

DecidedOctober 7, 1970

StatusPublished

Cited by1 cases

This text of 66 Misc. 2d 321 (Aydinian v. Federated Graphics Companies) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aydinian v. Federated Graphics Companies, 66 Misc. 2d 321, 320 N.Y.S.2d 599, 1970 N.Y. Misc. LEXIS 1273 (N.Y. Super. Ct. 1970).

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Opinion

Martin- B. Stecher, J.

On the trial of this action the testimony of third-party defendant De Siciliano differed materially both from his sworn testimony given on a deposition and his sworn testimony given in a different action previously tried before another Judge of this court. The discrepancies were fully revealed to the jury and despite testimony which on one trial or the other appears to have been perjurious, the jury found for the third-party defendant. The third-party plaintiff now moves to set that judgment aside and for judgment in its favor.

The motion is denied. The provisions of CPLR 4404 permitting the trial court to set aside a verdict ‘ ‘ in the interest of justice ” is not a mandate to substitute the court’s judgment for that of the jury.

In those cases where the verdict has been set aside (and a new trial ordered) the evidence of perjury was discovered after the jury presented its verdict (McCarthy v. Port of N. Y. Auth., 21 A D 2d 125 ; Lando v. Murray’s Trucking Corp., 258 App. Div. 616 ; Bloch v. Szczukowski, 229 App. Div. 394 ; Frohlich v. Zeltzer, 185 App. Div. 103 ; Nugent v. Metropolitan St. Ry. Co., 46 App. Div. 105). Obviously on such a retrial the jury would have an opportunity to sift truth from falsehood.

But in this action, the jury had before it all of the conflicting testimony; and whether De Siciliano’s “testimony was truthfully given * * * on the first or the second trial was for the jury, not the court, to determine ” (Williams v. Delaware, Lackawamna & Western R. R. Co., 155 N. Y. 158, 161 ; Shea v. United States Trucking Corp., 200 App. Div. 821, affd. 235 N. Y. 529). The jury selected the version it chose to believe and this court cannot say that the prior version was the accurate one. To require the third-party defendant to lose his case would be to impose punishment for his perjury — whenever it occurred. That of course is for another tribunal under different circumstances.

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Martin- B. Stecher, J.

On the trial of this action the testimony of third-party defendant De Siciliano differed materially both from his sworn testimony given on a deposition and his sworn testimony given in a different action previously tried before another Judge of this court. The discrepancies were fully revealed to the jury and despite testimony which on one trial or the other appears to have been perjurious, the jury found for the third-party defendant. The third-party plaintiff now moves to set that judgment aside and for judgment in its favor.

The motion is denied. The provisions of CPLR 4404 permitting the trial court to set aside a verdict ‘ ‘ in the interest of justice ” is not a mandate to substitute the court’s judgment for that of the jury.

In those cases where the verdict has been set aside (and a new trial ordered) the evidence of perjury was discovered after the jury presented its verdict (McCarthy v. Port of N. Y. Auth., 21 A D 2d 125 ; Lando v. Murray’s Trucking Corp., 258 App. Div. 616 ; Bloch v. Szczukowski, 229 App. Div. 394 ; Frohlich v. Zeltzer, 185 App. Div. 103 ; Nugent v. Metropolitan St. Ry. Co., 46 App. Div. 105). Obviously on such a retrial the jury would have an opportunity to sift truth from falsehood.

But in this action, the jury had before it all of the conflicting testimony; and whether De Siciliano’s “testimony was truthfully given * * * on the first or the second trial was for the jury, not the court, to determine ” (Williams v. Delaware, Lackawamna & Western R. R. Co., 155 N. Y. 158, 161 ; Shea v. United States Trucking Corp., 200 App. Div. 821, affd. 235 N. Y. 529). The jury selected the version it chose to believe and this court cannot say that the prior version was the accurate one. To require the third-party defendant to lose his case would be to impose punishment for his perjury — whenever it occurred. That of course is for another tribunal under different circumstances.

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Bluebook (online)

66 Misc. 2d 321, 320 N.Y.S.2d 599, 1970 N.Y. Misc. LEXIS 1273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aydinian-v-federated-graphics-companies-nycivct-1970.

Opinion

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