Fried v. New York, New Haven & Hartford Railroad

178 A.D. 309, 165 N.Y.S. 495, 1917 N.Y. App. Div. LEXIS 6493

Opinions

Blackmar, J.:

The serious question between the plaintiff and defendant is the liability of defendant to respond in damages for the serious injuries which the plaintiff suffered while in defendant’s employ. To properly determine this question is the sole end and object of the action, and everything done by the court, all judgments and orders made, all appeals decided, must be solely directed to securing this result. For the present, questions of conduct of counsel, resting on charges and counter charges, must be subordinated to that end.

On the last trial, a witness, Berkery, gave important testimony tending to sustain plaintiff’s cause of action, and plaintiff recovered a verdict for $75,000 damages for the loss of both arms, amputated at the shoulders, as the result of burns from escaping electric fluid. After action by the court for the reduction of the verdict to $55,000, a motion was made for a new trial by the defendant, on the ground that it had discovered evidence tending to show that Berkery had committed perjury upon the trial on subornation of plaintiff’s attorney. The motion was granted and an order so entered. On this motion and on another, made by plaintiff, to vacate this order, many affidavits were read. Among them was one by Berkery, deposing that he had knowingly committed perjury at the instigation of plaintiff’s attorney. On the other hand, it appeared that Berkery was not only under pressure of an indictment procured by defendant, but that defendant, while Berkery was in jail, paid to his family $12 a week for seven months, and, after he left jail, $21 per week for nineteen months. It is a fair inference that this witness is now in the control of the defendant and out of the State, and his testimony is claimed to be essential to plaintiff’s case, although upon this point we express no opinion. The defendant claims that plaintiff’s judgment rested on the perjured testimony of this witness; on the other hand, the plaintiff claims that his testimony given at the trial was true and that the subsequent affidavit retracting it is perjury. On the one hand, it would be gross injustice that plaintiff’s Verdict should rest on perjury, and on the other no less an injustice would result if a just cause of action should be destroyed by defendant’s acts. The witness Berkery is a venal and perjured witness; but the question is, which evidence is true, that given on the trial or in the retracting affidavits. After this court had affirmed the order granting a new trial and that denying a motion to set it aside (176 App. Div. 936), application was made to us to modify the order by inserting the conditions above stated. We denied this application, with leave to the plaintiff to apply for such relief to the justice who made the order. The application was made to the justice, who granted it and imposed the condition to the new trial that plaintiff might read upon the new trial, as evidence, the testimony given by his witnesses at the last trial. We have no doubt of the power of the court to impose such a condition upon granting the favor of a new trial to the defendant. For it was granted as a favor and not a right. Neither at Special Term nor in the Appellate Division has the court decided that Berkery committed perjury at the trial. The extent of the decision was that the evidence that he had committed perjury was so strong that the case should be retried so that the value of his evidence could be tested by the jury, who alone were competent to pass on the facts, in the light of the evidence of his subsequent retraction. In the exercise of his discretion, the justice at Special Term, who was also the judge who tried the case, has determined that in view of the peculiar circumstances of the case justice requires that plaintiff be permitted to read the testimony given at the former trial. In this way the jury may hear the evidence as already given, together with the impeaching evidence, and decide where the truth lies. We see no reason why we should reverse the decision. Under certain circumstances, testimony of a witness on a former trial may be read in evidence on a new trial. (Code Civ. Proc. § 830.) This may be done as matter of right if the witness has died, become insane, being a non-resident has departed from the State, or has been rendered incompetent by operation of the provisions of section 829 of the Code. .In this case the court, as a condition to granting a favor, extended the rule to the testimony of a witness who, since the first trial, has come under the pay and resulting control of the opposite party to the action. The favor granted by the court is not to the plaintiff.in permitting him to use incompetent evidence, but to the defendant in granting a new trial. If the defendant accepts the new trial, it accepts the condition, and the evidence goes in by its consent. The appeal to us is to permit the defendant to accept the favor and reject the condition on which it is offered. We might have taken a very different view of the matter except for the fact that it is conceded that the defendant paid to Berkery’s wife twelve dollars a week for seven months and twenty-one dollars a week for nineteen months, and. that such payments ceased only on the very day after the motion which resulted in the order appealed from was made. But it is argued that it violates fundamental principles of judicial administration to permit testimony of a witness theretofore taken to be read in evidence while the witness, in an affidavit then existing, asserts its falsity. This argument seems to us to rest on the faulty assumption that the later testimony of the witness is necessarily true. At the time the testimony was given the witness was in a court of justice and, in the presence of judge and jury, sworn, examined and subjected to cross-examination. When he made the retracting affidavits he was in the State of Pennsylvania, presumably in a private office, swearing before a notary public to an affidavit prepared by someone else. We know of no presumption that the later oath is the true one. It is a question for the jury which is true. If at the time of the new trial the witness were dead, or, being a non-resident, absent from the State, the testimony could be read no matter how many contradicting affidavits he had since made. As to the quality of the evidence, it makes no difference whether the conditions to its admission, prescribed in section 830 of the Code, or those present in this case and upon which the court acted, exist. And if, in cases provided for by the Code, to receive the evidence violates no fundamental principle of judicial administration, neither does it in this case. We think the Special Term has prescribed the only way in which the question can be passed on by the jury; but we think the order should be modified so as to confine the permission to the testimony of Berkery, and to permit the defendant, if the plaintiff reads it, to offer impeaching statements or affidavits without laying the foundation therefor by previous questions to the witness.

The order is modified in accordance with this opinion, and as modified affirmed, without costs.

Stapleton and Rich, JJ., concurred; Thomas, J., dissented in separate opinion, with whom Jenks, P. J., concurred.