Forfar v. Kosacielecki

153 A. 387, 9 N.J. Misc. 262, 1931 N.J. Sup. Ct. LEXIS 424

Opinion

Per Curiam.

The prosecutor seeks to review the action of one of the judges of the Court of Common Pleas in allowing a new trial after two successive verdicts.

“While in this state there is no statute, or rule established by decisions, limiting the number of times the court may set aside a verdict and grant a new trial because it is against the weight of the evidence, still a second concurring verdict upon the same state of facts or on slightly varying evidence should cause the court to hesitate before granting a third trial.” Brown v. Paterson Parchment Paper Co., 69 N. J. L. 475. See, also, Johnson v. Central Railroad, 109 Atl. Rep. 360; Fabiano v. Berckes, 123 Id. 887; Adkins v. Philadelphia, 150 Atl. Rep. 210; Scharwath v. Brooks, 150 Id. 211; 14 Cyc. Pl. & Pr. 992; 29 Cyc. 729.

The Court of Common Pleas in granting the rule for a third new trial was merely exercising its common law powers. Its action in so doing was discretionary. This court will not review such action, even though it might not have granted the rule. State v. Comstock, 95 N. J. L. 321; affirmed, 96 Id. 299.

The writ will be dismissed.