Cerrato v. Santugge

PER CURIAM. The defendant appeals from an order denying his motion for a new trial on the ground of the newly discovered evidence of one Bova. A perusal of the affidavits in support of the motion, [616] which are practically uncontradicted in their essential features, seems to indicate that defendant has not been guilty of undue delay in obtaining the newly discovered evidence, which appears to be of a substantial nature, bearing upon the issues in suit in a manner that justifies a belief that, had such evidence been submitted at the trial, the result might have been different. The main objection is that no affidavit of Bova himself is produced; but this is accounted for by the affiants, who state that Bova stated to them that he would not make an affidavit, but would swear to the facts 'indicated, if called to court as a witness. The rule is that, where a witness who can supply the new evidence refuses to make an affidavit, another can make an affidavit of such witness’ statements, which will be sufficient to warrant the granting of the motion. James McCreery Realty Corporation v. Equitable Nat. Bank, 54 Misc. Rep. 508, 104 N. Y. Supp. 959. So far as laches are concerned, it has been held that a new trial can be granted in the City Court for newly discovered evidence, even though the judgment has been affirmed on appeal (Id., 52 Misc. Rep. 300, 102 N. Y. Supp. 975, and cases cited; Ex parte Fuller, 182 U. S. 562, 21 Sup. Ct. 871, 45 L. Ed. 1230; 54 Misc. Rep. 508, 104 N. Y. Supp. 959); and, as above stated, defendant does not appear to have been negligent, and it seems to us that the order should be reversed. Order reversed, and a new trial granted, with costs to appellant to abide the event.