Hammond v. Hammond

255 A.D. 829, 1938 N.Y. App. Div. LEXIS 5460

Opinion

Order reversed on the facts, without costs, and motion granted, without costs. Memorandum: The jury verdict in this case depends on the testimony of two witnesses, one the son of the defendant by a prior marriage and the other a friend of the son. There was no sufficient proof to establish the adultery by circumstantial evidence. The testimony of the defendant’s son which was very explicit is weakened by the fact that although he had known that his father was anxious to secure a divorce, he had failed to disclose to him for several months the facts which he testified to relating to the plaintiff’s adultery. The other witness, the friend of the defendant’s son, is shown upon this motion, if the statements are believed, to be of questionable character and to have admitted more than once that his testimony upon the trial was false. We are of the opinion, therefore, that in the interests of justice a new trial should be had. All concur, except Lewis and Taylor, JJ., who dissent and vote for affirmance. (The order denies plaintiff’s motion for a new trial on the ground of newly-discovered evidence, in an action for separation in which defendant counterclaimed for divorce.) Present— Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.