Harris v. Waite

Hardin, J. This application is made by defendant for a third trial, under section 37 of 3 Revised Statutes (5th ed.), 596. The defendant obtains the second trial as a matter of [114] right, lipón payment of costs (Rogers agt. Wing, 5 How. Pr., 50; opinion by Hand, justice). He was beaten worse on the second trial than he was on the first, but that furnishes no reason for granting a third trial. It is settled that but two new trials can be granted under this section of the statute (Bellinger agt. Martindale, 8 How. Pr., 113; opinion by Gridley, justice). This application is addressed to the judicial discretion of the court. Before it can be granted the court must be “ satisfied” (1) “ that justice will be thereby promoted,” (2) and the rights of the parties more satisfactorily ascertained and (3) established. According to the course of the trial it appears several disputed questions of fact arose, and much evidence upon either side was given, and the court submitted the questions of fact thus presented to the jury; they found for the plaintiff, and there is no such preponderance of evidence in favor of the defendant as to lead the court to say, “that justice will thereby be promoted,” by a conclusion upon such conflicting evidence, adverse to the jury. The views of judge Robertson in Wright agt. Milbank (9 Bosworth 677) apply in this case, and' favor a denial of the motion. It is clear a refusal of this motion leaves the defendant to pursue the ordinary rights of a suitor by an appeal from the trial judgment, and to have it reversed if any error of law was committed by the court, which shall be discovered by an appellate court, upon “ a bill of exceptions or a case ” (opinion of Gridley, justice, 8 How. Pr., 116). The last trial occupied considerable time, and though the amount of the value of the land in controversy is very small there was a fair presentment of evidence by both sides, bearing upon all the questions of fact. It does not appear that justice requires a new trial, nor that the rights of the parties would be more fully ascertained or established by a new trial. The motion must, therefore, be denied, with ten dollars costs.