Harrington v. Bigelow

By the Court, Beardsley, J.

A new trial is never granted to let in evidence, although newly discovered, to impeach the testimony of a witness, cither by showing that his reputation for truth is bad, or that the evidence given by him was not true. Testimony of this description is not material within the rule which governs in such cases; it must relate to some new fact upon which evidence was not given on the trial already had, and must be so important in its nature as to induce a belief that if proved to the satisfaction of a jury it would control their verdict. (Grah. on New Trials, 463, 496.) In Halsey v. Watson, ( 1 Caines, 25 ,) the court in deciding a motion for a new trial on the ground of newly discovered evidence said— “ The testimony goes only to impeach the credit of what has been sworn, and not to establish a nexv fact. It is merely contradicting former evidence. In that point of view it is not material.” Again, in Bunn v. Hoyt, ( 3 John. 256 ,) “A verdict is never set aside to give the party an opportunity of impeaching the credit of witnesses sworn on a former trial. The *110 evidence should be to some material fact, which would induce the belief that, if proved to the jury, it would so far influence their minds, as to produce a different verdict.” (See also Shumway v. Fowler, 4 John. 425 ; Duryee v. Dennison, 5 id. 248; Jackson v. Kinney, 14 id. 186; Den v. Geiger, 4 Halst. 239; Den v. Wintermute, 1 Green, 182.) In Lister v. Mundell, (1 B. & P. 427,) the rule as stated was admitted, but that case was taken out of .it on the ground that the facts on which the witnesses had founded themselves were shown by the affidavits to be false. “ The court observed, that though it was unusual to grant a new trial on evidence contradicting the testimony on which the verdict had proceeded, discovered subsequent to the trial, yet as the very facts on which these witnesses had founded themselves were falsified by the affidavits produced, they thought it afforded a sufficient ground for a new trial.” (See Grah. on New Trials, 499.)

New trial denied.