Acosta v. Miller Transport Co.

Per Curiam. In October, 1948, a jury rendered a verdict for the defendant in an action to recover damages for personal injuries based on negligence. Plaintiffs, during the same term of the court, addressed two motions to the trial court (1) to set aside the verdict upon the ground of newly discovered evidence, and (2) to reargue an oral motion made at the end of the trial (and or ally denied) to set aside the verdict as against the weight of evidence. The trial court granted the first motion, but denied the second. We find that there was no legal basis for the granting of the first motion as the so-called newly discovered evidence consisted solely of an unsworn statement made by one of defendant’s witnesses after the trial, which tended to vary some of the details but not the substance of the testimony he had given at the trial. There was no claim that false testimony had been given. Accordingly, we are required to reverse the order setting aside the verdict granting a new trial upon the ground of newly discovered evidence, and plaintiffs’ said motion should be denied. We find, however, upon a reading of the record that the verdict for defendant is against the weight of the credible evidence, and the motion to set it aside on that ground should have been granted. The question is presented as to whether the order entered on the second motion is an appealable order. Ordinarily, orders denying reargument of prior motions are not appealable. This is because an appeal might have been taken from the original order, and a party may not extend his time by appealing from an order denying reargument. Here, however, the order appealed from is the first written order entered on the motion to set aside the verdict as against the weight of evidence. A formal written order denying that motion was necessary to lay the basis for an appeal from such order. The trial court had the power to reconsider the motion to set aside the verdict made during the term at which it had been informally denied. (Voison v. Commercial Mut. Ins. Co., 56 Hun 215, affd. 123 N. Y. 120.) The plaintiffs moved to have their earlier motion reconsidered and the ultimate relief granted. In the interest of justice we may consider their prayer for other and further relief to include a request for a formal order denying the original motion and, under the circumstances, the order denying reargument is to be deemed the formal order denying the original motion to set aside the verdict as against the weight of the evidence. As such an appeal will lie from the second order. Accordingly, since we think that the verdict is against the weight of the evidence, the second order is reversed and the motion for a new trial granted. Glennon, J. P., Cohn, Callahan and Van Voorhis, JJ., concur; Shientag, J., dissents on plaintiffs’ appeal on the ground that the verdict was not against the weight of the credible evidence. Orders reversed. Settle order on notice.