Smith v. I. Brush

8 Johns. 84

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

This is a hard defence. The defendants attempt to defeat the plaintiff, in recovering 1,816 dollars and 28 cents, confessedly due him. They have had a chance to do so. The jury have disbelieved the testimony of the witness, by whom the usury was to be proved, and it cannot be said, that there were not suspicious circumstances ; the time, the place, and the nearness of the defendants’ connection with the witness, were all proper subjects of consideration, by the jury.

It appears that the evidence of the usury varied substantially from the usury pleaded, or given notice of. Neither the plea nor notice mentions that the buck horse formed any part of the consideration of the bond; but the usury is alleged to consist in including in the new bond, 183 dollars and 72 cents, as the consideration of giving the day of payment. Now, it appears, by all the evidence, that the horse, which was worth about 100 dollars, formed part of that item. It is well settled, that a variance in the sum is fatal; if so, it is equally fatal to vary in the consideration. Instead of usury to the amount stated in the plea and motion, there was usury only to the extent of a part of it, about 83 dollars and 72 cents. The court ought to have rejected the evidence on this principle; and as it was improperly given, it goes for nothing.

The new testimony, alleged to be discovered, does not relate to any new fact, but goes merely to corro-. borate the credit of Brush's testimony, by proving the parties met in the room, where he lay in btd, accident, and not by any preconcerted arrangement with the defendant; but it is against the general rule to a new trial, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted upon the former trial. It is the duty of the parties to come prepared upon the principal point, and new trials would be endless, if every additional circumstance, bearing on the fact in litigation, was a cause for a new trial. The rule against a new trial, for this cause, was stated by the court in Steinbach v. Columbian Insurance Company. (2 Caines, 129.) The motion ought, therefore, to be denied.

Motion denied.