Helmke v. Stetler

New York Supreme Court

Helmke v. Stetler

23 N.Y.S. 394, 69 Hun 109, 76 N.Y. Sup. Ct. 109, 52 N.Y. St. Rep. 530

DecidedMay 8, 1893

StatusPublished

This text of 23 N.Y.S. 394 (Helmke v. Stetler) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Helmke v. Stetler, 23 N.Y.S. 394, 69 Hun 109, 76 N.Y. Sup. Ct. 109, 52 N.Y. St. Rep. 530 (N.Y. Super. Ct. 1893).

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Opinion

DYKMAN, J.

This is an appeal from an order denying a motion for a new trial upon newly-discovered evidence. The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant. The plaintiff was in the' employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal. The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action. The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result. It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer, and now he makes an affidavit that the horse did kick him, but that it was a slight kick, and he attributes it to his carelessness. TTis testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men, and fight with other horses. The other affidavits are in many respects suspicious, and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with $10 costs and disbursements. All concur.

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DYKMAN, J.

This is an appeal from an order denying a motion for a new trial upon newly-discovered evidence. The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant. The plaintiff was in the' employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal. The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action. The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result. It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer, and now he makes an affidavit that the horse did kick him, but that it was a slight kick, and he attributes it to his carelessness. TTis testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men, and fight with other horses. The other affidavits are in many respects suspicious, and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with $10 costs and disbursements. All concur.

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Bluebook (online)

23 N.Y.S. 394, 69 Hun 109, 76 N.Y. Sup. Ct. 109, 52 N.Y. St. Rep. 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helmke-v-stetler-nysupct-1893.