Opinion
December 2, 1974
In a negligence action to recover damages for personal injuries, etc., defendant appeals from (1) a judgment of the Supreme Court, Orange County, entered November 20, 1973, in favor of plaintiffs, upon a jury verdict on the issue of liability, defendant having stipulated to the amount of judgment in the event of such a verdict and having reserved his right to appeal as to the question of liability, and (2) an order of the same court, dated March 15, 1974, which denied his motion to set aside the jury verdict and for a new trial on the ground of newly discovered evidence. Judgment and order reversed, on the law and the facts and in the exercise of discretion, without costs, and motion granted. We believe it was an abuse of discretion to deny defendant's motion for a new trial. Gulotta, P.J., Latham, Christ and Benjamin, JJ., concur; Martuscello, J., dissents and votes to hold the appeal in abeyance pending a remand to, and a report from, Special Term on the issue of whether there really was newly discovered evidence.