Dart v. Kudlich

New York Supreme Court

Dart v. Kudlich

13 N.Y.S. 61, 36 N.Y. St. Rep. 563, 59 Hun 622, 1891 N.Y. Misc. LEXIS 954

DecidedJanuary 16, 1891

StatusPublished

This text of 13 N.Y.S. 61 (Dart v. Kudlich) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dart v. Kudlich, 13 N.Y.S. 61, 36 N.Y. St. Rep. 563, 59 Hun 622, 1891 N.Y. Misc. LEXIS 954 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Van Brunt, P. J.

This appeal comes before us under different circumstances from those which would surround it had not the motion for a new trial been heard and granted by the learned judge who presided at the trial at circuit. He necessarily was familiar with ail the proceedings of the trial before the jury, and could best judge as to what the probable effect of the testimony of Yogt would be in case it was produced before the jury, and he having come to the conclusion that the testimony bore directly upon the issue presented to the jury, and might change the result theretofore reached by them, should have great weight with the appellate court. He was familiar with the whole atmosphere of the case, and was better able to form a judgment upon the question than this court can, having simply the bare record before it. Unless, therefore, there has been pointed out some error committed by the learned judge, which appears with reasonable certainty, the order should be affirmed. We have examined the case for the purpose of seeing whether or not the learned judge might have been mistaken in assuming that this evidence bore directly upon the issue. We think that he was entirely correct, and that it was important evidence for the defendant, which, in view .of the fact of the failure to deny the same upon the part of the plaintiff, would undoubtedly have great weight with the jury.

The objection raised in respect to loches does not seem to be well taken in, view of the fact that the motion was made within reasonable time after the proposed case had been made. Under all the circumstances of the case, we think, therefore, that the order should be affirmed, with $10 costs and disbursements. The time to comply with the order appealed from is extended until 10 days after notice of the entry of the order .of affirmance. All concur.

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Van Brunt, P. J.

This appeal comes before us under different circumstances from those which would surround it had not the motion for a new trial been heard and granted by the learned judge who presided at the trial at circuit. He necessarily was familiar with ail the proceedings of the trial before the jury, and could best judge as to what the probable effect of the testimony of Yogt would be in case it was produced before the jury, and he having come to the conclusion that the testimony bore directly upon the issue presented to the jury, and might change the result theretofore reached by them, should have great weight with the appellate court. He was familiar with the whole atmosphere of the case, and was better able to form a judgment upon the question than this court can, having simply the bare record before it. Unless, therefore, there has been pointed out some error committed by the learned judge, which appears with reasonable certainty, the order should be affirmed. We have examined the case for the purpose of seeing whether or not the learned judge might have been mistaken in assuming that this evidence bore directly upon the issue. We think that he was entirely correct, and that it was important evidence for the defendant, which, in view .of the fact of the failure to deny the same upon the part of the plaintiff, would undoubtedly have great weight with the jury.

The objection raised in respect to loches does not seem to be well taken in, view of the fact that the motion was made within reasonable time after the proposed case had been made. Under all the circumstances of the case, we think, therefore, that the order should be affirmed, with $10 costs and disbursements. The time to comply with the order appealed from is extended until 10 days after notice of the entry of the order .of affirmance. All concur.

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Bluebook (online)

13 N.Y.S. 61, 36 N.Y. St. Rep. 563, 59 Hun 622, 1891 N.Y. Misc. LEXIS 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dart-v-kudlich-nysupct-1891.