Gentile v. Mesick

283 A.D. 759, 128 N.Y.S.2d 274, 1954 N.Y. App. Div. LEXIS 5167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1954
• Status: Published

Opinion

This is an appeal from a judgment of the Supreme Court, Fulton County, entered upon a jury verdict of no cause of action, and from an order denying plaintiff’s motion for a new trial. There is a separate appeal from an order, based on affidavits, denying a new trial on the ground of newly discovered evidence. This is a negligence action involving a collision of two automobiles, one proceeding along the street and the other emerging from the driveway of a gas station. It is apparent from the record that a sharp issue of fact as to the manner of the collision developed at the trial. The dispute was fairly submitted to a jury, and its verdict does not appear to be against the weight of evidence. The newly discovered evidence is said to be the testimony of the owner of the gas station. His absence from the trial is not satisfactorily explained (not at all by his own affidavit). His testimony at a new trial would be only cumulative. Judgment and orders unanimously affirmed, with costs to respondent. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, J J.