Weber v. Weber

5 N.Y.S. 178, 1889 N.Y. Misc. LEXIS 2870

• Court: City of New York Municipal Court
• Decided: January 1, 1889
• Status: Published

Opinion

Ehrlich, J.

At the trial there was a marked preponderance of witnesses (numerically) in defendant’s favor; plaintiff, however, recovered a verdict. The contents of the memorandum now produced were in substance spread before the jury, yet it is believed that the production at the trial of the'paper itself might have changed the result. Assuming, however, without deciding, that the finding of this paper is not sufficient reason for granting a new trial, yet the affidavit of Mr. Frank clearly justifies the order which defendant applies for. This action is between father and son. It was tried as a one-hour cause. The apparent preponderance of evidence was with defendant, but was given mainly by interested witnesses, and the circumstances indicate that the sympathy or passion of the jury might have become enlisted in behalf of the successful party. Now a witness is- produced whose testimony must be assumed to be disinterested and credible, who deposes that the plaintiff stated to him the nature of the transaction in controversy, and that his statement was in direct conflict with his testimony here, and in accord with that of defendant. This evidence is newly-discovered, and might not have been obtained by defendant by any exercise of diligence before the trial, and is sufficient in - itself to sustain a verdict for defendant. The motion should be granted on the ground of newly-discovered evidence, upon condition, however, that defendant pays $30 trial fee, $10 costs of this motion, and the jury fees paid at the trial.