Hanauer v. Bradstreet's Collection Bureau , 158 N.Y.S. 918 ( 1916 )

Lehman, J.

The plaintiff brought an action against the defendant and at the trial he sought to prove his case by showing that one of the defendant’s directors had made certain admissions in regard to the collection of moneys. In order to prove that the person making these alleged admissions was a director of the defendant he called this man as. his own witness and this witness flatly denied that he was a director. The trial justice thereupon dismissed the complaint for failure of proof without prejudice to a new action. Thereafter the plaintiff procured the original certificate of the defendant’s incorporation which showed that the witness was one of the original directors. This certificate was executed over a year before the trial. The plaintiff then moved for a new trial on the ground of newly discovered evidence and this motion was granted. The defendant now appeals from this order.

There seem to me to be two reasons why a new trial should not have been granted. The judgment was not granted upon the merits but for failure of proof. The plaintiff knew in advance that he must prove that the person making the alleged admission was a director. He presented this man as his own witness and though he had a right to contradict this witness he could not impeach his credibility. This witness has testified that he was not a director at the time when the alleged admission was made. He was not asked nor is it material whether he was a director at the time of the incorporation. If a new trial takes place and the plaintiff presents the certificate of incorporation, such evidence would not establish the material element of the plaintiff’s case that this man was a director at the time the alleged admission was made, especially in view of the explanation that he became a director only for 'the purpose of incorporation and never served thereafter. Even with that paper in the record there would still be a failure of proof on this material point.

Moreover, I do not think that this certificate can properly be called newly discovered evidence even if it would change the result. The plaintiff would have “ discovered ” it before the trial if he had thought he would need it. He tho.ught, however, that he would not need it because he could furnish evidence on the same point through the .alleged director. He failed to get this proof from his witness and therefore the case was dismissed. In effect, therefore, the plaintiff is asking the court to grant him a new trial to put in evidence proof to supply a defect in his previous proof. Where a party chooses to rely upon an adverse witness to supply a necessary link in his chain of evidence and then finds that his confidence was misplaced, he should not be granted a new trial to supply other evidence which he could have obtained before the. trial. The plaintiff does not seriously dispute these rules but claims that by means of this certificate he can cross-examine the witness and show that his testimony was perjured. Unfortunately, however, for the plaintiff, the witness whom he desires to cross-examine is his own witness, and the judgment rests not upon fraudulent testimony but upon an actual failure of proof.

Pendleton and Whitaker, JJ., concur.

Order reversed, with thirty dollars costs, and motion denied and judgment of dismissal reinstated.