Fishbein v. Schwarzbart

This action is on a promissory note, the plaintiff contending, in substance, that he obtained the cash therefor on or about July 21, 1920, the defendant claiming that it was delivered for what is substantially an illegal consideration sometime in .September, 1920.

At the trial plaintiff’s only disinterested witnesses identified the date as being in July when he delivered the cash for the note to the plaintiff, the witness himself testifying that he had forthwith discounted it at his own bank. Subsequently the defendant discovered that no such discount transaction had occurred, as is proved by the affidavit of the auditor of the bank.

This appears to me to be clearly newly-discovered evidence. Defendant could not have anticipated that the date of the negotiation of the note would be established by plaintiff through a third party, or that the third party would testify that he had cashed the note at his bank. Moreover, it is manifestly material in view of the fact that it was the only testimony which fixed the date of negotiation absolutely by what is practically a physical fact. Its importance is emphasized by the answering affidavit of the witness *428whose only explanation is that he “ may have been mistaken in testifying after a lapse of three years * * * that he had procured the money from a bank.”

Order reversed, motion granted, judgment vacated, and a new trial ordered, with thirty dollars costs to abide the event.

Bijur and Levy, JJ., concur; Mullan, J., dissents.

Order reversed, judgment vacated and new trial ordered.