Gunther v. Heath

282 A.D. 802, 122 N.Y.S.2d 497, 1953 N.Y. App. Div. LEXIS 4989

Opinion

Appeals from a judgment of the Supreme Court at Trial Term, in favor of plaintiff, entered in Broome County on June 3, 1952, upon a jury verdict, in an action brought by plaintiff to foreclose a lien filed upon moneys due appellant from the State of New York on a public improvement contract, and from two orders involved in the same controversy. The principal issue at the trial resulting in the judgment was whether the employment contract between the parties was for $100 per week or $60 per week, and a dispute over a receipt signed by plaintiff. The jury has decided in favor of the plaintiff, deducting a minor claim for an old indebtedness. So far, nothing is involved but a question of fact and veracity which the jury has decided. The first order appealed from is merely to direct the enforcement of the jury’s verdict. The second order, denying a motion for a new trial, on the ground of newly discovered evidence, is a discretionary order, and was denied by the trial court because of the failure to show that the alleged newly discovered evidence was not available at the time of trial. No party is entitled to a second trial because the first one was lost, unless very distinct reasons are presented. The trial court was not convinced'that there was a reason, and we see no abuse of discretion. Judgment and orders unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Coon, Halpern and imrie, JJ.