James McCreery Realty Corp. v. Equitable National Bank

123 A.D. 358, 107 N.Y.S. 1080, 1908 N.Y. App. Div. LEXIS 61

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinions

Scott, J.:

The appellant appeals from a determination' of the Appellate Term, affirming an order of the City Court of the city of ¡New York, which granted a new trial on account of newly-discovered evidence. The action was brought to recover an installment of rent, amounting to $750, claimed to he due for the .month of January, 1905, under a written lease whereby the demised premises were let for a term of five years from May 1,1902. The defendant entered into possession under the lease in May or June, 1902, and occupied the premises and paid rent therefor until February, 1904, when a receiver was appointed who continued to occupy the premises and pay rent therefor for some time after his appointment. It is unnecessary to recite in detail the history of the case, or the nature of the newly-discovered evidence which the plaintiff seeks an opportunity to present, since that ground has been exhaustively covered by the prevailing opinion of Mr. Justice Giegerich in the Appellate Term. (54 Misc. Rep. 508.) The same learned .justice has satisfactorily demonstrated that the right to move for a new trial, in this State is and has been at least since 1832 a right conferred by statute; and hence, that the removal of the judgment to the Supreme Court of the United States by writ of error, and its affirmance by that court, constituted no bar to the plaintiff’s present motion. (Fuller v. United States, 182 U. S. 562.)

The right of the City Court to entertain the motion being thus determined, the question whether or not the motion should be granted, became one for the exercise of the court’s • discretion. Assuming, but without deciding, that this court has power to review the discretionary order of the City Court .affirmed by the Appellate Term, I am very clearly of the opinion that we should not in the present case exercise that power. I am not unmindful of the apparent weakness of the' plaintiff’s case for a new trial, and-much doubt whether, as an original proposition, I should have been disposed to grant the motion. But that point is one upon which reasonable minds may well differ, and it certainly cannot be said that the City (Court abused its discretion in deciding to grant the application.. Under these circumstances I do not think that we should overrule both the City Court and the Appellate Term.

The order should be. affirmed, with ten dollars costs and disbursements.

Patterson, P. J., and Latighlin, J., concurred; Ingraham and . Clarke, JJ., dissented.