Meakim v. Anderson

By the Court, King, J. Two motions are made on behalf of the plaintiff — a motion to set aside a verdict in favor of the defendants, the cause having been tried at the circuit in March, 1848 — for alledged misdirection of the judge at the trial; and also, a motion for a new trial, on the ground of newly discovered evidence. The first exception taken by the plaintiff’s counsel was, that the judge permitted the introduction of evidence to show a total failure of consideration of the note on which the action was brought, the defendant having pleaded the general issue, and given no notice of this defense. The exception was not properly taken, it being well established that a total failure of the. consideration of a note, or that it was given without consideration, may be proved under the general issue, without notice. (Payne v. Cutler, 13 Wend. 605.) [223] The second exception was, that parol evidence of the contents of a letter had been admitted, without sufficient proof of the loss of the letter. It seems to us that the proof of - loss was sufficient, and that the exception was properly overruled. The third exception was to the judge’s refusal to recall, upon application by the plaintiff, a witness originally introduced by the defense -to explain part of his testimony, on the ground that it had been misunderstood. The witness had been examined and cross-examined, and permitted to leave the stand; and had subsequently conversed with the plaintiff’s counsel. The judge stated that the witness had, both in his original and cross-examination, made the statement which he desired to explain, and that he did not think proper to permit such explanation, when there was no doubt as to what the witness stated, and after a conference with the plaintiff’s counsel. It was in the discretion of the judge to permit, or refuse, the re-examination; the discretion seems to have been properly exercised, and the exception should be overruled on that score, even if we could now review the exercise of his discretion. (People v. Rector, 19 Wend. 578. Law v. Merrills, 6 Id. 281.) The fourth exception is á general one to the charge of the judge. We do not, however, perceive that any error of law was committed in the charge. The whole dispute in the case was on a question of fact, and that was left to be determined by the jury. As to the motion for a new trial, on the ground of newly discovered evidence and surprise; it appears from the affidavits in opposition to the motion, that the plaintiff, before the trial, was aware that Samuel W. Thompson claimed to have paid him the money which his sister Mary had given him to pay the plaintiff; and that he had never seen his sister after such payment. This does away with the plaintiff’s statement, that he was surprised by this evidence. The testimony which he claims to have discovered since the trial, is that of his own son and daughter, and only tends to impeach Samuel Thompson’s statement, that he had never seen his sister, after his paying the money to the plaintiff. It is testimony, therefore, to impeach the witness, and such testimony does [224] not furnish the ground for a new trial. Nor is any sufficient excuse shown why it was not adduced at the trial, the plaintiff having been apprised of the necessity of rebutting Samuel W. Thompson’s testimony, if he could do so. [New-York General Term, June 14, 1851. Edwards, Edmonds and King, Justices.] The motion to set aside the verdict must, therefore, be denied, with costs. And the motion for a new trial, on the ground of surprise, &c. must be denied with §10 costs.