Opinion
April Term, 1896.
Richard L. Ball, for the appellant.
Edward L. Jellinek, for the respondent.
This was an action upon a fire insurance policy to recover for a loss. A verdict was rendered for the plaintiff, and on the 5th of November, 1895, the defendant obtained an order to show cause, returnable at Special Term, why a new trial should not be granted herein upon the ground of newly-discovered evidence, which motion was denied. Its order was based upon certain affidavits and upon a case containing exceptions as settled in the action and upon all papers and proceedings had therein. The controversy arises over the taxation of costs in favor of the plaintiff. The clerk of Erie county taxed the plaintiff's costs at sixty dollars for the motion for a new trial. The defendant objected to this item. The defendant moved before the Special Term for a retaxation of these costs to the end that the bill might be corrected by striking out the sixty dollars.
The Special Term denied the motion, and the appeal from this order brings the question before us for review.
Section 997 of the Code of Civil Procedure provides: "When a party intends to appeal from a judgment rendered after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case and procure the same to be settled and signed by the judge, justice or the referee," etc.
By subdivision 3 of section 3251 of the Code of Civil Procedure, costs are given to either party "upon a motion for a new trial upon a case, or an application for judgment upon a special verdict, the same sums as upon an appeal."
The costs upon appeal are, before argument, twenty dollars; for argument, forty dollars.
In Russell v. Randall ( 123 N.Y. 436) it seems to be conceded that, when a motion for a new trial is made upon the ground of newly-discovered evidence, it must be made upon a case under section 997 of the Code of Civil Procedure; unless by consent of the parties it is heard upon the pleadings and affidavits without a case, the General Term of the fifth department in that case having so held.
In Boyd v. Boyd ( 11 Misc. Rep. 357) the General Term of the New York Common Pleas held that, in the absence of a case settled and signed by the trial judge, or of the consent of the opposing party to the settlement of a case for the hearing of a motion upon the pleadings and affidavits, the court had no authority to entertain the motion for a new trial upon the ground of newly-discovered evidence.
The same court held, same volume, in Perkins v. Brainard Quarry Co., at page 337, that when a motion for a new trial was made upon a case, and affidavits and papers theretofore served, the successful party is entitled to the same costs as upon appeal. (Citing Atkinson v. Truesdell, 7 N.Y. Supp. 801; Wilcox v. Daggett, 15 Wkly. Dig. 208.)
In Bantleon v. Meier (81 Hun, 162) Judge BRADLEY, speaking for the General Term of the fifth department, held that section 997 of the Code of Civil Procedure applied to a motion made for a new trial upon the ground of newly-discovered evidence, and that that was declaratory of the practice as it existed before the enactment of the Code, and that a motion for a new trial could not be made, if the person moving for the same had not made a case and procured the same to be settled.
This view seems to us to be reasonable as, if a case is to be made and settled and an argument to be had at Special Term upon such a case, though it may be connected with the affidavits upon which the motion for a new trial is partially made, the parties are subjected to the same labor and expense as are incidental to a motion for a new trial, upon a case and exceptions for other reasons. The ten dollars motion costs would be entirely inadequate to compensate a party in such a case.
The case is indispensable upon such a motion, as motions for new trials are not granted upon the ground of newly-discovered evidence, where the evidence is cumulative merely, or where the tendency of the evidence is simply to impeach the testimony of witnesses upon the trial. Nor will such a motion be granted, except it shall appear fairly to the court that the newly-discovered evidence, had it been given upon the trial, would have changed the result.
To determine these questions a full history of the trial and a complete statement of the evidence must be submitted to the court, duly authenticated by the trial court, for the consideration of the court before whom the motion is made.
The only authority quoted in opposition to this view is that of Hosley v. Colerick (9 Civ. Proc. Rep. 43). The learned judge at Special Term in that case held that a motion for a new trial upon the ground of newly-discovered evidence was not a new trial upon a case within the meaning of the provisions of section 3251 of the Code of Civil Procedure for the reason that the motion was in fact made upon affidavits and other papers and is not a motion on a case, but a case was only used on such a motion to enable the court by an inspection of the same to ascertain whether the alleged newly-discovered evidence, as disclosed by the affidavits, is cumulative. The court seems to concede that a case must be made and used upon such a motion.
It is difficult to perceive, if that be so, why the respondent's contention here should not be sustained.
The order of the Special Term should be affirmed, with ten dollars costs and with the disbursements of this appeal.
All concurred.
Order affirmed, with ten dollars costs and disbursements.