Michel v. Colegrove. MICHEL et al., APPELLANTS, v. COLEGROVE, SUPERIOR COURT OF THE CITY OF NEW YORK, GENERAL TERM; JULY, 1892. §§ 910, 1002. New trial-when not granted on newly discovered evidence-suppression of commission. Where by the exercise of proper diligence facts upon which a new trial on the ground of newly discovered evidence is asked, could have been discovered before the trial, the party making the motion is estopped from the relief sought by reason of his negligence and laches. If the least fault be imputed to the moving party, he will ask for relief in vain. A judgment will not be vacated for the purpose of allowing the defeated party to attack the credibility of the witnesses of the successful party or to contradict them, or to show that they testified falsely; nor can a new trial be obtained either for the purpose of furnishing new cumulative evidence or for the purpose of destroying the cumulative evidence of the successful party. A motion for a new trial on the ground of newly discovered evidence and to suppress a commission will be denied where the motion is made upon the ground that since the trial the plaintiffs who make the motion have discovered that the defendant had advised a witness examined in London under a commission what answers to make to the interrogatories propounded, and the witness had followed such instructions, where it does not appear that the defendant gained anything thereby or that the witness would testify differently if re-examined and his testimony was not controlling, but cumulative. The conduct of the defendant, while inexcusable and calling for severe condemnation, not being a wrong from which it appeared that the de Michel v. Colegrove. fendant derived any benefit, does not afford sufficient reason to entitle the motion to prevail, and although it would furnish ground for suppressing the commission in advance of trial, it will not after trial do so where the commission was issued two years before the trial; and the plaintiffs knew of the answers made to the several interrogatories, and might with reasonable diligence have learned of the conduct of the defendant. (Decided July 5, 1892.) Appeal by the plaintiffs from an order of the special term denying a motion made by them upon a case and exceptions and affidavits to set aside the judgment and for a new trial, and also to suppress the deposition of the witness taken under commission. The facts are stated in the opinion. Henry Daily, Jr., for plaintiffs, appellants. Franklin Pierce (Thornall, Squires & Pierce, attorneys), for defendant, respondent. GILDERSLEEVE, J.-This is an appeal from an order of the special term, by Judge MCADAM, dated March 24, 1892, denying plaintiffs' motion to suppress the deposition of one George Battelson, taken under a commission, and to set aside a judgment of the special term, entered herein, and for a new trial. This motion was made upon a case and exceptions, and upon affidavits setting forth the fact that, since the entry of the judgment herein, plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by a commission in London, had, previous to the execution of the commission, written said Battelson a letter, inclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness. In an affidavit, one of the plaintiffs stated that said Battelson informed him, when in London, sub VOL. XXII.-20. Michel v. Colegrove. sequent to the trial herein, that before the execution of said commission he (said Battelson) received said letter from defendant, and answered the interrogatories as directed by defendant. The defendant, in his affidavit, used in opposition to the motion, admits the writing of the letter to Battelson, but disclaims any intention to direct Battelson in the answers he was to make to the interrogatories or in any way to influence him. He further says, by way of explanation, that he had personal knowledge of all the facts stated in his letter, and that he also knew that Battelson knew the same facts; and he positively swears that each and every one of the answers of Battelson to the interrogatories in question was true; and that the occasion of writing the letter arose from a letter written to him by Battelson, in which Battelson set forth the facts as to which he subsequently testified, under the commission, and asked him (defendant) to suggest the form of answers to be used by him, said Battelson; and that said letter was written by defendant without any consciousness at the time that it was improper or indelicate for him to suggest the forms of the answers, and without any intent whatever of in any way influencing the evidence of said Battelson. This letter of the defendant certainly indicates a disregard of the proprieties that all honorable men observe in the conduct of any litigation, however bitter, and is a trespass upon the code of ethics which should control under such circumstances, that calls for severe condemnation by this court (In re Eldridge, 82 N. Y. 161; Butler v. Flanders, 44 N. Y. Super. 531; Graham v. Carleton, 9 N. Y. Supp. 392). We deem the conduct of the defendant in this respect inexcusable. But from a careful examination of all the evidence we are not satisfied that it was a wrong from which the defendant derived any benefit. This conduct of the defendant, therefore, does not afford sufficient reason to entitle the Michel v. Colegrove. motion to prevail. The plaintiffs knew two years before the trial that a commission had been issued for the examination of Battelson, and they knew what answers he had made to the several interrogatories. Yet no motion was made to suppress. The excuse is that the facts were not known until after the trial. But could they not, by the exercise of proper diligence, have been discovered before? It is reasonable to suppose they could have been, and therefore the plaintiffs are estopped from the relief sought by reason of their negligence and laches (see Baylies' New Trials & App., pp. 524, 525, and cases there collected; Quinn v. Lloyd, 31 N. Y. Super. 255; Smith v. Nelson, 62 N. Y. 288). If the least fault be imputable to the plaintiffs, they will ask for relief in vain (3 Grah. & W. New Trials, 1026; Weston v. Railway Co., 42 N. Y. Super. 162). Again, the testimony was not controlling, but cumulative; and there is enough in the case without the testimony of said Battelson to sustain the judgment rendered. There is no reason to believe that Battelson would testify differently if re-examined; nor is there any reasonable certainty that a new trial would produce a different result. The disclosures made by the evidence upon which the plaintiffs rested their motion would be of no value upon a new trial, except by way of affecting the credibility of Colegrove and Battelson. A judgment will not be vacated for the purpose of allowing the defeated party to attack the credibility of the witnesses of the successful party, or to contradict them, or to show that they have testified falsely. (See Smith v. Lowry, 1 Johns. Ch. 320; McIntire v. Young, 39 Amer. Dec. 447; Starin v. Kelly, 47 N. Y. Super. 291; Emmerich v. Hefferan, 53 N. Y. Super. 98). The plaintiffs now seek to destroy the judgment by removing or destroying the cumulative corroborative evidence in Battelson's deposition. But a new trial cannot be obtained either for the purpose of furnishing new Michel . Colegrove. cumulative evidence or for the purpose of destroying the cumulative evidence of the successful party. (See Baylies' New Trials and App. 525, and cases there collected). We quote, with entire approval, from the decision of Judge MCADAM in disposing of this motion: "This rule is settled that if a witness, examined on commission, is instructed by the party in interest how to testify, the commission will be suppressed, at the instance of the adverse party, on the ground that such conduct is prejudicial to him, corrupting to the witness, an abuse of process, and a fraud on the court, interfering with pure administration of justice. But suppressing a commission in advance of the trial and granting a new trial after an adverse judgment is quite a different thing. A judg ment is intended to terminate a litigation and to conclude the parties as to every question raised or which might have been raised before the final result was reached; and rights so lost may never be regained." For the reasons above stated it follows that the order appealed from must be affirmed, with $10 costs and disbursements. FREEDMAN and DUGRO, JJ., concurred. |