Fliegel v. City of New York , 280 A.D. 898 ( 1952 )

In a negligence action, order granting motion to set aside a verdict for defendant and judgment entered thereon and for a new trial on the ground of newly discovered evidence, reversed on the law and the facts, with costs, and motion denied, without costs. The affidavits of the two proposed witnesses show nothing which would warrant a conclusion that their testimony probably would result in a different verdict. These witnesses came forward in response to advertisements inserted in newspapers after the trial and the adverse verdict. If the order appealed from be affirmed, the plaintiff will be afforded two trials, whereas the advertising, so far as appears, could have been accomplished prior to the trial. Finally there is no justifiable excuse for the delay of ten months between the time when plaintiff was apprised of the identity of these witnesses and the nature of their testimony and the time when the motion for a new trial was made. Nolan, P. J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.