Gunther v. Heath

Appellate Division of the Supreme Court of New York

Gunther v. Heath

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 1953

StatusPublished

Cited by1 cases

This text of 282 A.D. 802 (Gunther v. Heath) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gunther v. Heath, 282 A.D. 802, 122 N.Y.S.2d 497, 1953 N.Y. App. Div. LEXIS 4989 (N.Y. Ct. App. 1953).

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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.

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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.

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Bluebook (online)

282 A.D. 802, 122 N.Y.S.2d 497, 1953 N.Y. App. Div. LEXIS 4989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gunther-v-heath-nyappdiv-1953.

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