Jones v. Lustig

37 Misc. 834

Opinion

Conlan, J.

We will dispose of the questions presented on this appeal in their reverse order, and first as to the motion for a new trial on the ground of newly-discovered evidence and surprise. Newly-discovered evidence in no sense means evidence that was known to he in existence, and which, for some unknown or unexplained reason, was not presented at the trial. Even if it were impossible to have secured the evidence, whether by subpoena or under a commission, does not make it newly-discovered, if the facts were known at or before the trial of the action. If offered at a later stage of the case, upon the theory that it was not known at the trial and has since been! discovered, a new trial will not be granted, if it be doubtful whether the new evidence will affect the result. The granting, or refusing of a new trial on this ground is said to be in the discretion of the court, and with the conclusion reached below upon the allegations in support of and against the defendant’s contention, we are not disposed to interfere. Coming then to the appeal in chief, we find in the record a charge to the jury without an exception, and not a single request for a different submission than that made. In addition to all this it does not appear that the defendant asked for the direction of a verdict, or a dismissal of the complaint; consequently, therefore, the submission was wholly correct, and as there was a conflict of evidence, it was peculiarly the province of the jury to determine the same, and such determination finds support in the evidence.

Judgment and orders appealed from affirmed, with costs.

TT a so alt, and O’Dwyer, JJ., concur.

Judgment and orders affirmed, with costs. ■