43, all arise out of the receivership proceeding: the receiver's allowance ($15,000); his expenses and disbursements, including transcripts of extensive hearings on claims ($4,299.43), and the broker's commission on the sale of the real estate ($6,6000). Whether such costs should be awarded to the prevailing party was discussed in Cusano v. Cusano, 19 N.J. Super. 255 (App. Div.), certif. den. 10 N.J. 310 (1952), where a partner who successfully defended against a dissolution application appealed the action of the trial court in charging the custodial receiver's allowance against the partnership.
Regarding dissolution: Under New Jersey law, which is the law applicable to RCA, a limited partnership can be dissolved for the willful or persistent breach of the partnership agreement or the misconduct of a general partner. See Cusano v. Cusano, 19 N.J. Super. 255, 88 A.2d 342 (1952); N.J. Rev. Stat. secs. 42:1-32, 42:2-13 (1953). 13 Because PPI Dover was wholly-owned by CPI and acted as CPI's nominee, control by PPI Dover was essentially the same as by CPI itself.
N.J.S.A. 42:2-13; N.J.S.A. 42:1-21. Cf. Cusano v. Cusano, 19 N.J. Super. 255 ( App. Div. 1952). It is precisely this holding that was the basis for his being enjoined from exercising his powers as general partner in N.C.A. and other limited partnerships upon complaints filed by limited partners, some of whom are defendants in this case.
Notwithstanding its unavailability at the trial, evidence which is merely cumulative does not so qualify. Cusano v. Cusano, 19 N.J. Super. 255, 271 ( App. Div. 1952). We are satisfied that the contract in question did not qualify as newly discovered evidence calling for a new trial.
To justify the granting of a new trial upon the ground of newly discovered evidence, it must appear: (1) that such evidence would probably have changed the result of the trial; (2) that it was unobtainable by the exercise of due diligence for use at the trial; and (3) that the evidence is not merely cumulative. Christie v. Petrullo, supra; State v. Hunter, supra; cf. Cusano v. Cusano, 19 N.J. Super. 255, 271 ( App. Div. 1952). A motion for a new trial is addressed to a discretionary power of the trial judge, to be exercised, however, not according to whim or caprice, but by sound application of rules of law controlling the determination of the motion.