Hooker v. Terpenning

8 N.Y.S. 639, 5 Silv. Sup. 487, 29 N.Y. St. Rep. 818, 55 Hun 610, 1890 N.Y. Misc. LEXIS 1693

• Court: New York Supreme Court
• Decided: February 10, 1890
• Status: Published

Opinion

Dykman, J.

This is an action for slander. It was tried at the circuit before a jury, and the plaintiff obtained a verdict. The defendant then made a motion for a new trial, on the ground of newly-discovered evidence, which was denied, and this is an appeal from the order of denial. To justify an order for a new trial for evidence subsequently discovered, such evidence must have come to the knowledge of the moving party after the trial, and it must be owing to no want of due diligence that it was not ascertained before. It must not be cumulative, and it must be of such character and so material that it will probably produce a different verdict if a new trial be obtained. The moving papers here fail entirely to bring the case up to the severe standard established by the foregoing rules of law. The failure to discover the evidence now disclosed, and which the defendant claims to be new, was due entirely to the failure of the plaintiff and his attorney to exert any diligence for Us discovery. All he did was to write to a lawyer to obtain the information, and then wait until the first day of the circuit to receive the report. He knew what testimony was essential, and after the trial he went to Pawlings, and found it. A careful preparation required him to make such visit and such inquiry before the trial. So that it was owing to the want of due diligence that the testimony was not discovered which caused the failure to make the discovery. Besides all that, the testimony is cumulative, and fails to -be effectual for that reason. It goes to the character of the plaintiff, and there was testimony of that kind introduced by the defendant; and then the probability that the newly-discovered evidence would produce a different result, if a new trial was granted, is quite remote. The defendant was not called to deny the slander, and many witnesses were called to speak of the character of the plaintiff. With all such testimony the jury gave the plaintiff averdiet, and there is no reasonable probability that more testimony of the same character would vary the result. The order should be affirmed, with costs and disbursements. All concur.