Opinion
October, 1914.
It would seem from the opinion of the court at Special Term, contained in the record, that the motion was disposed of upon the moving affidavits only. From the notice of motion and order it appears that the motion was made also upon the records on the former appeals. The opposing affidavit was not considered, for the very good reason that it had not been served upon plaintiff's attorney as the Rules of Practice require. The defendant's attorney did not appear in person on the hearing, but instead forwarded his affidavit with a letter. If the defendants' attorney had served his opposing affidavit and appeared and properly presented the matter to the Special Term, the result might have been different. At all events, we are of the opinion that all the papers should be considered in determining the motion and a full hearing had. Two trials have already been had and the case should not be opened for a new trial unless there is a probability of a different result upon a new trial. The order should be reversed, but, under the circumstances, without costs of this appeal, and the matter remitted to the Special Term. Order reversed, without costs upon this appeal, and the motion remitted to the Special Term, to be determined upon all the papers upon which the motion was made, and upon such further affidavits and papers as either party may serve and submit; and upon the demand of the defendants the affiant, Charles W. Conklin, is required to be produced upon the hearing of the motion for examination orally under oath; and the Special Term may likewise, in its discretion, require any of the other affiants to appear and be examined orally under oath upon such hearing. All concurred, except Robson, J., who dissented and voted for modification of the order by imposing all accrued costs as a condition.