Benda v. Keil

The plaintiff’s son, while in the employ of defendants, and engaged in the occupation of working at a drop hammer, met with an accident thereon in the month of August, 1897, and this action was brought by the father for the loss of his services.

There have been three trials of this case, which resulted respectively, in a verdict for plaintiff, which was subsequently reversed on appeal by the General Term of this court, a disagreement of a jury, and finally a verdict for the plaintiff, which has been affirmed here on appeal.

*397The defendants moved at Special Term, on affidavits and the stenographer’s minutes of the last trial, to vacate the judgment and for a new trial, upon the ground of newly-discovered evidence, showing that a material witness for the plaintiff had given perjured testimony. That motion was denied and this is an appeal therefrom.

On the trial the plaintiff’s case was established by the son’s testimony and corroborated by witnesses Klein and Wolfe. The latter’s testimony was materially weakened on cross-examination, so, practically, the only confirmation of the son’s story was that furnished by the witness Klein. The case was tried by the plaintiff on the theory that the drop hammer must have been out of order, because only two causes would operate the same, namely, pressure of the treadle and a defective clutch. The defendants asserted, however, that the injured boy caused the accident by pressing a board and box inside of the treadle of the machine, and that a hinge on the side of the board caught the treadle and held it down. The defendants called three witnesses who flatly contradicted the boy’s testimony, and now that Klein has repudiated his entire evidence given at the trial and admitted its perjured nature, it is for us to say whether without it the plaintiff would have succeeded before the jury. As was well said by the court in Nugent v. Metropolitan St. R. Co., 46 App. Div. 105: “ The object of a trial is to do justice, and whenever it is made to appear that one of the parties to the litigation has by fraud, connivance, conspiracy, or any other dishonest act, prevented his adversary from having a fair trial, then the court never hesitates to use the power it possesses to rectify that wrong- by vacating the judgment obtained and directing a new trial.”

Comparing the affidavit of Klein with his testimony, - we find among other things the following: On the trial he testified he was five or six feet from Mr. Benda at the time he was injured and was present when he was injured. In his affidavit he swears he did not see how the accident happened. In Ms testimony he says: “ I saw the foreman come running down and jumping up onto the machine; his name was Slatuk. He had a wrench in Ms hands, and he tightened something up on top of the machine * * * then the machine stopped.” In Ms affidavit he swears that he was instructed to testify that the machine was out of order, that Slatuk jumped up on the machine and repaired it. Again he *398swears, “ that he is not positive that the foreman Slatuk jumped up on the drop hammer at the time of the accident to Benda,” but says that, “ it is possible that he came under the impression that such was the case, from Benda having told him so; deponent saw Benda go away from the drop hammer immediately after the accident, but he did not see Mr. Slatuk stop the machine.” In his testimony he stated that he saw the board and box on the floor, and the chair lying there where it fell over when Benda got up. In his affidavit he swears that when he saw the board and box on the floor, it was sometime after the accident, and that they could have been taken'from the treadle of the drop hammer in the meantime and placed on the floor. Again he testified that the machine was out of order before the accident, and that he saw Slatuk repair it on an average of two or three times a week. In his affidavit he sivears he never saw it out of order; in fact the affidavit repudiates almost in toto deponent’s story of the accident as given on the trial.

We are not prepared to say that Avith that testimony out the résult would not have been different. The defendants are at least entitled to the benefit of that doubt, and for that reason we are of the opinion that there should be a new trial in this case.

The order appealed from is, therefore, reversed, and a new trial granted, with costs to appellants to abide the event.

McCarthy and Sohuchman, JJ., concur.

Order reversed and new trial granted, with costs to appellants to abide event.