Thompson v. Brooklyn & Queens Transit Corp.

246 A.D. 624, 283 N.Y.S. 1

Opinion

In an action by a passenger on a trolley car to recover damages for personal injuries sustained as the result of a collision between the trolley car and a truck owned by defendant The City of New York, order denying appellant’s motion to vacate the judgments in favor of plaintiff and to set aside the verdict and grant a new trial on the ground of newly-discovered evidence affirmed, with costs. No opinion. Young, Hagarty and Carswell, JJ., concur; Tompkins, J., with whom Seudder, J., concurs, dissents and votes for a reversal of the order and the granting of the appellant’s motion with the following memorandum: Plaintiff would not have conducted herself before the trial or pending the appeals as it is now claimed she has acted since the final judgment in her favor, so that the appellant could not have secured the evidence it now claims to be available. In view of the largeness of the judgment, I think the appellant should have an opportunity, on another trial, to offer the newly-discovered evidence. If the affidavits of Beck, O’Malley and DeChristopber are true, the plaintiff is entitled to recover but little, if anything.