Grosso v. Tilton

254 A.D. 807, 1938 N.Y. App. Div. LEXIS 7686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1938
• Status: Published

Opinion

Order reversed on the facts, with costs, and motion denied and verdict reinstated, with ten dollars costs. Memorandum: The plaintiff’s motion for a new trial upon the ground of newly-discovered evidence is based upon the affidavits of three persons. As to two of them it does not appear that their evidence could not have been discovered before the trial. As to the third one, Mary Bishop, the affidavits show that plaintiff could not have learned before the trial that she was willing to give testimony in his favor. However, in view of the overwhelming evidence on the trial in favor of the defendant, it is not probable that the testimony of Mary Bishop, supplemented by the testimony of the other two new witnesses would be sufficient to produce upon a new trial a different result than was attained on the first trial. All concur. (The order sets aside the verdict of a jury in favor of defendant and grants a new trial on the ground of newly-discovered evidence, in a railway negligence action.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.