Opinion
November, 1929.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Finch, McAvoy, Martin and O'Malley, JJ.; Martin, J., dissents.
Notwithstanding the fact that the damages which have been recovered may be excessive, they were recovered with the acquiescence of the party who is now seeking to set them aside. No other valid reason is assigned for granting this motion. The orders appealed from should, therefore, be affirmed, with ten dollars costs and disbursements to the respondent.
The court gave as the reasons for denying the motion for a new trial (1) that the witness Miressi was in court at the time of the trial and was not called by either party; and (2) that the judgment had been entered more than one year "and it cannot be in any event favored under Section 108, Civil Practice Act." There are affidavits by Miressi, the witness, by the attorney, and by a third person, that Miressi was not in court or at the trial and knew nothing about the trial of the action. His affidavit shows that he can give important evidence which is newly-discovered evidence entitling the defendant to a new trial. The judgment may be opened after one year ( Ladd v. Stevenson, 112 N.Y. 325) and in any event was not a default judgment. (Civ. Prac. Act. § 108.) In this case a new trial should be granted in the interest of justice. The judgment is for a much greater amount than the damage suffered by the plaintiff. Orders affirmed, with ten dollars costs and disbursements.