Russell v. Randall

Dwight, P. J.

The motion upon which the order was made was treated by the learned judge at special term as a motion for a new trial on the ground of newly-discovered evidence; and such it was, to all intents and purposes; but it was heard without a case to show what evidence was given on the trial already had. In the opinion at special term, it is said: “It is not cumulative evidence which is proposed to be added to the case, as that has been described by the authorities, but the proposal is to prove distinct and independent matters, in no manner brought before to the attention of the court and jury.” The difficulty with this statement is that this court has no means of verifying •it. If the judge at special term, being the same who presided at the circuit, relied upon his own recollection of the evidence actually given at the trial, that means of information is not available to the court sitting .in review' of the order. It is not found in the record, and is not subject to correction or review. It is true, it sufficiently appears that the evidence of the particular witness named in the moving papers was not given on the former trial; but how much other evidence of the same general purport and effect was given, does not appear. The rule is imperative that a motion for a new trial on the ground of newly-discovered evidence can only be made on a case which presents the evidence given on the first trial; and so enables the court, both in the first instance and on review', to say whether the newly-propounded evidence is cumulative or not, and whether it is, relatively, of such weight and importance as probably to change the result of the trial. The rule seems to be without exception in practice, and it is embodied in the positive enactment of the Code of Civil Procedure, § 997.

The action was for assault and battery; and the question chiefly litigated, as we may infer from the papers used on the motion, was of the extent of the plaintiff’s injuries. The newly-discovered evidence on that question which is proposed to be added to the defendant’s case is that of one Jeanette Stevens, a sister of the plaintiff, to the effect that the latter, with the aid of a physician, before and at the time of the trial, feigned serious injuries which did not exist. This evidence is propounded by the petition of the defendant used on this motion, to which is attached a copy of an alleged affidavit of Mrs. Stevens. That affidavit, if made as alleged, seems to have been extrajudicial. It was not made or entitled in this action; and a copy, only, is attached as an exhibit to the moving papers. In this form, it could betaken neither as proof of tile facts stated therein, nor that the proposed witness would testify to such facts on another trial of the action.

There is another feature of the case presented by the moving papers to which importance seems to be attached in the opinion at special term. It seems that, some time after the affidavit of Mrs. Stevens was made, a copy of it was published in a newspaper of the vicinity, and that, the plaintiff having brought an action of libel against the defendant for such publication, the defendant pleaded in justification the truth of the alleged libel, and had a verdict in the action. Of this result the opinion at special term remarks that it apparently establishes the truth of the statements made by Mrs. Stevens. But the pleadings in that action, which are attached to the moving papers in this record, show that the defendant, both by general and specific denial, put in the issue the fact of publication by him, and averred that the alleged libel was published by the procurement and consent of the plaintiff himself. The verdict was general; and it is, therefore, impossible to say whether the jury found the justification established, or that the defendant was not chargeable with the publication of the libel. We think the granting of the motion for a new trial, on the papers contained in the record before us, was error for which the order must be reversed, but without prejudice to the defendant’s renewal of his motion, on the ground’of newly-discovered evidence, on a case made and settled for that purpose.

Macomber, J., concurs.