Jackson ex dem. Rowley & Smith v. Kinney

14 Johns. 186

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Per Curiam.

This is an application for a new trial, on the ground of surprise and newly-discovered evidence. The newly-discovered evidence is for the purpose of impeaching the character of one of the witnesses examined on the part of the plaintiff. As a general rule, we have refused granting new trials on this ground. We have, however, repeatedly, in trials concerning the military lots, been more liberal in granting new trials, owing to the obscurity and multifarious frauds attendant upon those titles ; and especially, when the question turns upon the identity of the soldier from whom the title is claimed to be derived. Although the character of Sherwood, the witness, seems to be rendered infamous, in the extreme, by the affidavits furnished on the part of the defendant, yet, it is supported very much by affidavits on the other side. This is a question, however, that can be much more satisfactorily decided in open court, when the witnesses can be seen by the jury, and their intelligence and respectability judged of¿ and, besides, it is a question which properly belongs to the jury. The ground of surprise is removed by the affidavit of Smith. Upon the whole, considering the length of the defendant’s possession, upwards of nineteen years, and that the soldier is represented as having two names, and as considerable doubt rests upon the plaintiff’s claim, we are inclined to think the ends of justice will be best answered by sending the»cause back to a new trial, on payment of costs.

New trial granted,

(a)

Vide Jackson, ex. dem. Wolcott and others, v. Crosby, 12 Johns. Rep. 354.