Lacs v. . Everard's Breweries

*446 Per Curiam. The plaintiff, who was about four years of age at the time of the first trial, seeks to recover damages for injuries sustained by reason of the alleged negligence of the driver of one of defendant’s brewery wagons in running into and knocking him down in the borough of Manhattan, city of ISTew York, inflicting severe injuries. This action has been twice tried; at the first trial the jury rendered a verdict for the plaintiff for $10,000 ; at the second trial the verdict was $20,000. After the affirmance by the Appellate Division of the judgment entered upon the verdict at the first trial, a motion was made by the defendant, before the trial judge, to set aside the verdict and judgment on the ground that the same were based upon fraud and perjured testimony, and that the then plaintiff’s attorney and also the guardian ad litem not only presented such testimony, but actively participated in procuring it. This motion was granted and a new trial ordered. At the second trial the defendant called as witnesses John J. Rink and Edward J. Collins, who had been in the meantime convicted of perjury when testifying for the plaintiff on the first trial. The counsel for the defendant insisted that he was entitled to place before the jury the facts that led to setting aside the verdict rendered at the first trial and the judgment entered thereon. At the opening of Rink’s examination five questions were propounded to him and excluded, to which rulings exceptions were duly taken, which it is claimed by the appellant were legal error. It is insisted that the effort of the defendant to show by these questions, which need not be stated at length here, that the plaintiff in this action, or his then attorney, offered to pay or did pay to the witness money for the purpose of inducing him to take the witness stand and swear falsely in favor of plaintiff, was not only competent but most important evidence that should have been admitted. (Nowack v. Metropolitan. Street Railway Co., 166 N. Y. 433.) *447 The respondent seeks to answer this suggestion by pointing out that the indictments and convictions of these two witnesses, Rink and Collins, for perjury on the first trial, were admitted in evidence, and these witnesses were also permitted, notwithstanding the above criticised rulings, to give evidence as to various meetings of the then plaintiff’s .attorney and the guardian ad litem with these witnesses and others, at which was concocted the scheme to present upon the trial the perjured testimony, to which reference has already been made. The majority of the court, however, are of opinion that these facts do not present a complete answer to the point raised by the appellant, because they do not show such full and unmistakable knowledge of, and participation in, the effort to bribe witnesses as the evidence excluded would have tended to establish, and that, within the doctrine of Nowack v. Metropolitan Street Railway Company (supra), the criticised rulings of the trial judge involve error that necessitates a reversal of the judgment and order appealed from. The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.