Akron-Chicago Transportation Co. v. Specialty Foods Corp.

On June 4, 1965, a judgment was entered for the defendant in the above-entitled matter pursuant to a decision in writing made June 2, 1965 and reported at 46 Misc 2d 554.

•Subsequently, on August 31, 1965, the attorneys for the plaintiff obtained an order to show cause why an order should not be made vacating the judgment and granting a new trial on the ground of newly discovered evidence.

*866Reduced to its simplest terms, this is an action to recover for freight charges by the carrier with a counterclaim by the defendant. On the stipulated facts previously before the court, it appeared that a connecting carrier “ strapped and palletized ” the shipment of 125 cases for delivery to the consignee. Delivery was refused because the consignee could not inspect the goods without unstrapping them.

In its moving papers, plaintiff now submits affidavits stating that the goods were palletized but not strapped to the pallets. Argument was made on behalf of the defendant that even under those circumstances the decision should remain the same. If the information now before the court had been set forth clearly in the stipulated facts, the decision would have been otherwise because there would have been no hindrance to inspection by the consignee.

Present counsel for the plaintiff is not the same that previously handled the matter. Counsel was very frank before the court to advise that this evidence could have been obtained at the time of the prior decision and judgment. For the orderly proceedings in court and in an effort to have a termination to litigation once concluded, this court believes that the information submitted does not permit relief under CPLR 5015 (subd. [a], par. 2) as “ newly-discovered evidence.”

Therefore, the motion to vacate the judgment is denied, without costs.