Michel v. Colegrove

29 Jones & S. 278, 46 N.Y. St. Rep. 899, 22 N.Y. Civ. Proc. R. 297

Opinion

By the Court.—Gildersleeve, J.

This order denied the motion of plaintiffs to set aside the judgment of the special term herein, and to suppress the deposition of one George Battelson, with leave to renew the motion; so made, upon a case and exceptions, in addition to the affidavits, upon which alone the motion was made.

Plaintiffs’ motion was founded on affidavits setting forth the fact that since the entry of the judgment herein plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness; and plaintiffs asked to have said deposition suppressed and the judgment set aside on this newly-discovered evidence. The court held that such a motion should be made on a case and exceptions, as well as the affidavits setting forth the nature of the newly-discovered evidence, and denied the motion, with leave to renew on such case.

We are of opinion that the court below correctly indicated the practice to be followed in such a case, and that the order was properly granted. Holmes v. Evans, 13 N. Y. Supp., 610; Anonymous, 7 Wend., 331; Warner v. Western Transportation Co., 5 Robt., 499; see also, Russell v. Randall, 123 N. Y., 436.

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

Dugro, J., concurred.