Opinion
June 24, 1947.
Appeal from New York County Surrogate's Court.
The finding that appellant was in actual possession of the jewelry in question rested wholly on alleged oral general admissions without any other evidence showing actual possession of the specific property in question. The witnesses testifying to these oral general admissions were vitally interested. Under the circumstances of this case any evidence that would throw light upon the transaction and assist the court to determine where the truth ultimately lies should be considered. We think the newly discovered evidence requires the granting of a new trial.
The decree, so far as appealed from, should be reversed and a new trial ordered, with costs to the appellant to abide the event, and the matter remitted to the Surrogate of the County of New York for further action in accordance with this opinion.
Glennon, Dore, Callahan, Peck and Van Voorhis, JJ., concur.
Decree, so far as appealed from, unanimously reversed and a new trial ordered, with costs to the appellant to abide the event, and the matter remitted to the Surrogate of the County of New York for further action in accordance with the opinion of this court. Settle order on notice.