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and 136 New York State Reporter Upon no ground, therefore, can negligence be charged against the defendant, and, since he is not chargeable for erecting a nuisance, unless he was guilty of some negligence in respect of it, the action against him must fail under any construction of the complaint, which should have been dismissed.
MCLAUGHLIN, J., concurs.
SULLIVAN V. BANKERS' SURETY CO.
(Supreme Court, Appellate Term. February 11, 1907.) APPEAL-REVIEW-DISCRETION OF COURT-OPENING DEFAULT.
Where the justice below exercised, apparently without abuse, his discretion in opening upon terms the default of plaintiff in serving a reply to the counterclaim set up in defendant's supplemental answer, his determination calls for no interference on appeal, particularly where the very allegations of the counterclaim denied in the reply have already been deemed denied by statute.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3823.]
Appeal from City Court of New York, Special Term.
Action by Maurice Sullivan against the Bankers' Surety Company. From an order granting plaintiff's motion for leave to serve a reply to the counterclaim set up in defendant's answer, defendant appeals. Affirmed.
Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.
MacLEAN, J. The justice below, informed of facts and circumstances, exercised, apparently without abuse, his discretion in opening upon terms the default of the plaintiff, and his determination calls for no interference here, particularly as leave had been granted to the defendant to serve a supplemental answer, needlessly effusive, even offensive, by borrowed allegations, deemed to be denied elsewhere than in the iterative counterclaim, to which the plaintiff has by order been allowed to reply.
Order affirmed, with costs and dishursements.
GILDERSLEEVE and AMEND, JJ., concur in result.
(53 Misc. Rep. 1)
DAVIS v. WILLIAM ROSENZWEIG PEALTY CO. et al.
(Supreme Court, Special Term, New York County. February 19, 1907.) 1. MOTIONS-AFFIDAVITS-COMPELLING MAKING OF DEPOSITIONS.
Though Code Civ. Proc. $ 885, authorizes the taking of depositions of persons not parties to a suit in support of or opposition to motions, an application to take depositions on motion for new trial will be denied where it appears that the persons whose testimony is sought will not testify to the facts the applicant seeks to establish, because the facts do not exist or they have no knowledge concerning them.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Motions, $$ 32, 36.] 2. SAME.
Where one refused to verify a proposed affidavit to be used by defendant on a motion for a new trial, on the ground that he knew nothing of the matters therein contained, but refused to make any affidavit whatever upon an application to obtain his deposition, the application was granted on defendant's affidavit of the person's knowledge of such matters.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Motions, $ 36.] 3. SAME-LACHES.
There was no laches barring an application to take the deposition of one not a party to an action in support of a motion for a new trial, where the facts upon which the application was based were discovered several months previously, but were not made known to defendant's attorney because their importance was not appreciated, and there was no delay after the attorney learned them.
• Action by Harry B. Davis against the William Rosenzweig Realty Company and another. Motion to obtain the depositions of certain persons to be used upon motion for a new trial. Motion partly granted, and partly denied.
Morris J. Hirsch, for the motion.
Kurzman & Frankenheimer (John Frankenheimer, of counsel), opposed.
GIEGERICH, J. This is a motion, under section 885 of the Code of Civil Procedure, to obtain the depositions of certain persons, Kashare, Goldberg and Schlessel, to be used upon a motion which the defendant corporation proposes to make for a new trial. The action was brought to rescind a contract made by the plaintiff to purchase certain real estate of the defendant and to recover back the amount deposited on the execution of the contract. The plaintiff was successful; the trial court finding that the defendant had falsely represented to the plaintiff that the land in question was firm, natural ground suitable to support buildings, while in fact it was filled ground and unsuitable.
The moving papers show that the plaintiff testified upon the trial that Schlessel had purchased the property of him; that he had it tested, and reported to the plaintiff that it was filled ground, and that the latter had the land tested and verified that fact; that Schlessel, who was called as a witness in behalf of the plaintiff, testified that after entering into a contract with the plaintiff for the purchase of the property he had a digger examine the lots, who reported that the ground was filled ground; and that the result of such examination was communicated to the plaintiff by the witness, upon the strength of which the plaintiff rescinded the contract upon the ground of the alleged falsity of the representation. And it is further alleged in the moving papers that since that time Schlessel told Kashare and Goldberg that, the plaintiff being financially unable to take title, it was arranged between them that Schlessel should be relieved of his contract to take the property in suit, and a scheme devised to have the bottom of the ground declared to be made ground and not good ground, and assert that representaand 136 New York State Reporter tions had been made as to the character of the bottom on behalf of the defendant company to induce the plaintiff to purchase the said property. Schlessel denies that he made any of the statements claimed to have been made by him, and which he says are in direct conflict with his testimony upon the trial, and he further states that the reason why he refused to swear to the proposed affidavit was because all the al egations therein contained after the first page were untrue. Kashare denies that Schlessel ever made to him any of the statements above mentioned, and he further denies having any conversation with William Rosenzweig at Asbury Park, subsequent to the trial, to the effect that Schlessel had entered into a conspiracy with the plaintiff of the character above stated. Kashare further makes affidavit that he never had any conversation with Schlessel relating to the purchase of any property whatsoever from the plaintiff, and that the reason why he refused to swear to the proposed affidavit was because he "knew nothing about the matters therein referred to."
Mr. Justice Scott, in Calvet-Rogniat v. Mercantile Trust Co., 46 Misc. Rep. 20, 24, 93 N. Y. Supp. 241, passing upon a similar application said:
“The proceeding is not intended to be used as one for the general examination of witnesses, and no good purpose is to be served by putting questions which will elicit denials of the facts sought to be established. The Code es. pressly vests the granting of this order in the judicial discretion of the court, and it would not, in my opinion, be a proper exercise of that discretion to appoint a referee to take the depositions when it clearly and positively appears. as in the present case, that the parties to be examined will not swear to the facts which plaintiff seeks to establish by their depositions, because, as they allege, these facts do not exist. The result of their examination, under these circumstances, would not aid the court in determining the principal motion."
All that is above said applies with equal force to the cases oSchlessel and Kashare, and hence the motions as to them should be denied. A different situation, however, is presented in the case of Goldberg, the remaining proposed witness, who refused to verify the proposed afidavit on the ground that he had no knowledge of the matters therein contained, but who, nevertheless, refused to make any affidavit whatever upon this application. His case, therefore, differs from Calvet-Rogniat v. Mercantile Trust Co., supra, where the proposed witnesses made positive affidavits that some of the matters proposed to be so proved by them were not true, and that as to others they had no knowledge. It is objected by the plaintiff that as the main issue upon the trial was whether or not the defendant William Rosenzweig represented that the lots in suit were good and not made ground, and as Schlessel gave no testimony on that point, it would be unavailing to discredit him. This argument loses sight of the fact that the evidence sought would not only discredit Schlessel, by showing a conspiracy between him and the plaintiff to relieve the latter of the contract in suit by false testimony, but would equally discredit and refute the plaintiff, who did testify to the main issue.
Neither do I think that there has been any such laches on the defendants' part as to constitute a bar to this motion. The facts were discovered several months ago, but were not made known to the defendants' attorney because their importance was not appreciated. It does not appear that there was any delay after the attorney learned the facts, but the contrary rather, as he states in his affidavit that they were just related to him.
The motion as to Goldberg is therefore granted, but denied as to Schlessel and Kashare, with $10 costs to abide the final event of the action. The appointment of a referee to take the deposition of Goldberg, as well as the time and place of his examination, will be deferred until the settlement of the order, which may be had on two days' notice.
(52 Misc. Rep. 525)
ISRAEL V. URY et al.
(Supreme Court, Appellate Term. February 11, 1907.) 1. APPEAL-REVIEW-NEW TRIAL-GROUNDS-AVAILABILITY OF TRIAL COURT'S
Gen. Prac. Rule 31, requires orders granting new trials, except on exceptions taken during trial, to specify the grounds upon which the motions are made and granted. Held, that on appeal the Supreme Court may consider the opinion of the trial court to ascertain whether or not the order was granted on exceptions taken at the trial, where the order does not specify the ground upon which the new trial was granted.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error,
$$ 2966, 2967.) 2. NEW TRIAL-COSTS-CONDITION OF NEW TRIAL.
Where a new trial was granted on the ground that a verdict for defendants was against the evidence, the payment of costs should have been imposed upon plaintiff as a condition.
[Ed. Note.-F'or cases in point, see Cent. Dig. vol. 37, New Trial, 8 322.) 3. APPEAL-NEW TRIAL-SPECIFICATION OF GROUNDS.
Though the failure of an order to specify the ground upon which a new trial was granted, as expressly required by Gen. Prac. Rule 31, might ordinarily warrant a reversal, the Supreme Court will not resort to that measure where the trial court seemed to have been justified in setting aside
the verdict as contrary to the evidence. Appeal from City Court of New York, Special Term.
Action by William H. Israel against August. Ury and others. From an order setting aside a verdict for defendants and granting a new trial, defendants appeal. Modified and affirmed.
Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ. Edgar Hirschberg (T. Channon Press, of counsel), for appellants.
Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
PER CURIAM. The issues were tried before the court and a jury. and a verdict was rendered for defendants. Immediately after the rendition of the verdict the plaintiff's counsel moved "to set aside the verdict upon the ground that on the conceded facts of the case it is contrary to the weight of evidence, contrary to the law, and in view of the fact that the defendants concede a certain amount is now due." The court entertained the motion and subsequently granted the same, stating his reasons therefor in a written opinion, forming part of the and 136 New York State Reporter record. From the order setting aside the verdict and granting a new trial, defendants appeal.
The respondent's counsel claims in his brief that the appellants stipulated that the only question to be raised on this appeal was "whether or not the trial court can set aside the verdict of a jury, as being against the weight of evidence, without imposing costs as a condition. No such stipulation is annexed to the record, and neither party has confined himself to that one question on this appeal. The order under consideration stated the grounds upon which the motion was made, but does not specify the grounds upon which it was granted. Rule 31 of the general rules of practice provides :
“When an order grants or refuses a new trial, except on exceptions taken during the trial, it shall specify the grounds upon which the motion was made and the ground or grounds upon which it was granted."
The counsel for respondent claims that we have no right to consider the opinion of the trial court in order to ascertain whether the order was granted on the exceptions taken at the trial or not, and he cites in support of this contention a number of decisions of the Court of Appeals which have no bearing upon the case at bar. In the case of Bryant v. Allen, 54 App. Div. 504, 67 N. Y. Supp. 89, Mr. Justice Patterson used the following language, viz.:
"It has been intimated that the opinion of the trial judge cannot be referred to in order to ascertain the grounds or reasons for his disposition of the case. That such use cannot be made of an opinion of a lower court in the Court of Appeals has been very frequently stated by that tribunal, but in this court a contrary rule prevails. It is required that in all cases in which opinions have been written by the court below they shall appear in the appeal book, or their absence therefrom be accounted for by affidavit, and by rule 41 of the general rules of practice the opinion of the court below is made in express terms a part of the record."
Upon examining the opinion of the court below in the case at bar, we find that, putting away all other considerations, he based his decision wholly upon the ground that the verdict was contrary to the evidence. Indeed, in the statement prefixed to the record it especially appears that:
“The opinion states that it (the motion] was granted on the ground that the verdict was contrary to the evidence."
It therefore appears that the new trial was not granted on exceptions taken during the trial, and that the order comes within the scope of rule 31, with the requirements of which it fails to comply.
So far as the question of costs is concerned, we quote from the opinion of Mr. Justice Hirschberg, in the case of Helgers v. Staten Island Midland R. R. Co., 69 App. Div. 570, 571, 75 N. Y. Supp. 34, as follows:
**The defendant's motion for an order setting aside the verdict and granting a new trial was made upon all the grounds stated in Code Civ. Proc. $ 999: but the written opinion of the learned trial justice makes it quite clear that it was granted because the verdict was deemed to be against the weight of evidence, and because the amount, although very small, was regarded as excessive under the proof.
But it was error to grant the favor of a new trial, because of a mistake upon the part of a jury, without imposing the pasment of the costs of the first trial upon the party at whose instance the new trial was ordered. This is the settled rule of practice, and, as was said by