Hayward v. Wemple

Burr, J.:

The order denying appellant’s application to be relieved of its bid was made and entered on the 29th day of April, 1912. (Hayward v. Wemple, No. 1, 152 App. Div. 195.) More than a month thereafter an application was made for an order appointing a referee to take the .affidavits, of. certain persons named to be used upon the hearing of another motion by the Esseff Realty Company to be relieved from' its bid upon the same grounds which were made the. basis of the preceding application. That motion was denied, and from the order of denial this appeal is taken.

The order must be affirmed. No permission was given to renew the previous motion. It- appears from the moving papers that the evidence sought to be obtained through These affidavits is not of the character of newly-discovered evidence, hut that an attempt is to he made to retry a question once litigated and decided adversely to the moving party, by calling further witnesses to testify as to facts involved in the original controversy and determined therein.

The order must he affirmed, with ten dollars costs- and disbursements.

Hirschberg, Thomas, Woodward and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.