Opinion
December 7, 1961
These appeals arise from the trial of three actions resulting from a two-car collision at approximately 2:00 P.M. on July 13, 1957 on Route 17 in Sullivan County near the Village of Bloomingburg. One car involved, was owned and operated by Samuel Magid and contained his wife and three minor children. The other was operated by William Brinkman who had as passengers, his brother Ronald Brinkman, the owner of the car, his mother Marion Brinkman, Lillian Glover and Alexander Dorey. Action No. 1 was brought by Marion Brinkman, Lillian Glover and Alexander Dorey against Ronald and William Brinkman; action No. 2 was brought by William Brinkman against Samuel Magid and action No. 3 was brought by Ronald Brinkman against Magid. All three actions, and three other actions not here involved, were tried together and the jury returned a verdict of no cause of action in action No. 1 and verdicts for $800 and $2,000 in favor of plaintiffs in actions Nos. 2 and 3 respectively. The Trial Judge granted the motion for a new trial in action No. 1 on the grounds of newly discovered evidence but denied a similar motion for a new trial in actions Nos. 2 and 3. The defendants in each action appeal. The plaintiffs in action No. 1 cross-appeal on the grounds that the jury's verdicts were against the weight of the evidence. However, in view of the decision here reached it has not been considered on this appeal. The accident occurred on a rainy, misty afternoon with the visibility described as from fair to poor and the road slippery. The Magid car was proceeding westerly on Route 17 toward Monticello, the Brinkman car easterly toward Middletown. At impact the Magid car was in the wrong lane. Magid claimed that his presence in the wrong lane was due to the fact that as he proceeded slowly on his course he suddenly saw the Brinkman car in the wrong lane and swerved into the other lane to avoid a collision only to have the Brinkman car return to its proper lane just prior to impact. No disinterested eyewitnesses were produced at the trial to describe how the accident occurred. During settlement discussions, just prior to trial, it was for the first time intimated to the attorneys for Marion Brinkman, Lillian Glover and Alexander Dorey that there had been an eyewitness or eyewitnesses to the accident. Investigation subsequent to the trial revealed that one Paul Novak and a Murray Nahama were in a car directly behind the Magid car just prior to the accident. Despite the extreme reluctance of Novak to divulge what he had observed, to the point that contempt proceedings were brought against him, he finally made an affidavit which placed the Brinkman car on the wrong side of the road just prior to the accident. It is on the basis of this affidavit that the Trial Judge granted a new trial in action No. 1. Appellants Ronald and William Brinkman assert that the granting of a new trial on the grounds of newly discovered evidence is improper on the grounds that this evidence could have been discovered with reasonable diligence for use at the trial ( Collins v. Central Trust Co. of Rochester, 226 App. Div. 486, 487) and that in any event it is so unworthy of belief that the Trial Judge should not have granted the motion based upon it ( Collins v. Central Trust Co. of Rochester, supra, p. 489). The granting of a motion for a new trial upon the ground of newly discovered evidence is largely a matter of discretion with the Trial Judge ( Collins v. Central Trust Co. of Rochester, supra; William v. Kemp, 266 App. Div. 891). The determination of each such motion depends on the particular circumstances involved. In Barrett v. Third Ave. R.R. Co. ( 45 N.Y. 628, 632) the court states: "Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end." We are not able, under the peculiar and perhaps extreme circumstances here involved, to say that the court below improperly exercised its discretion in granting the motion for a new trial. The court could determine on this record that respondents, Marion Brinkman, Glover and Dorey, could not with reasonable diligence have obtained the testimoney of Novak for use on the trial. Additionally, though there may be inconsistencies and contradictions in the testimony of both Novak and Nahama, we do not find their testimony so incredible as to compel us to hold that the court below must disregard it. Appellant Magid urges that having concluded that a new trial was properly granted in action No. 1 we are constrained in the interests of justice to reverse the denial of the court below of the motions for new trials in actions Nos. 2 and 3 to avoid the possibility of inconsistent results ( Robinson v. Terminal Frgt. Transp., 2 A.D.2d 510; Jackson v. Dickman, 256 App. Div. 925, reargument denied 256 App. Div. 1003; Minerella v. Brooklyn Queens Tr. Corp., 254 App. Div. 578). The granting of the relief requested is largely a matter of discretion with the court, and we agree that in the interests of justice the denial of the motions for new trials in actions Nos. 2 and 3 should be reversed and new trials granted. Order affirmed in action No. 1, with costs to abide the event; judgments and orders reversed in actions Nos. 2 and 3 and new trials granted, with costs to abide the event. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur; Herlihy, J., concurs in the result.