Opinion
February 10, 1939.
F.L. Simpson, ( N. Richman with him,) for the defendant.
M. Horowitz, ( J.E. Levine with him,) for the plaintiff. SUPPLEMENT.
Exceptions overruled. Ordinarily a motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge, and an exception will not lie to the denial of such a motion. Madden v. Boston Elevated Railway, 284 Mass. 490, 494. There is nothing in this record to take the case out of the ordinary rule. The judge was not required to believe the affidavits in whole or in part even though they were uncontradicted. Hanson v. Hanson, 258 Mass. 45, 46. Commonwealth v. Millen, 290 Mass. 406, 410. Germain v. Raad, 297 Mass. 73, 75. Even though he accepted them as true, he was not required to find that the evidence therein referred to "was not available to the defendant by the exercise of reasonable diligence and inquiry" for introduction at the trial. In the absence of proof of this fact, it clearly was not error to deny the motion. See Sherman v. Collingwood, 221 Mass. 8, 14; Berggren v. Mutual Life Ins. Co. 231 Mass. 173, 176; Nicholas v. Lewis Furniture Co. 292 Mass. 500, 507. Nothing in Davis v. Boston Elevated Railway, 235 Mass. 482, relied on by the defendant, requires a different conclusion. Other considerations bearing on the propriety of the denial of the motion need not be considered. See, however, Sherman v. Collingwood, 221 Mass. 8, 14. Clearly there was no abuse of discretion.