James A. Romaine, Respondent, v. The Village of Spring Valley, Appellant

James A. Romaine, Respondent, v. The Village of Spring Valley, Appellant. Second Department, June 14, 1907. Municipal corporation — negligence — injury by defective sidewalk — evidence — resolution by village trustees admissible — new trial on grounds of newly-discovered evidence refused. Action against a municipality to recover'for injuries sustained'by falling into a hole in the sidewalk. Evidence examined and judgment for plaintiff affirmed. On the issue as to whether the. sidewalk was- defective the minutes of the board of trustees of the village showing resolutions directing the owner of the premises to repair the sidewalk are admissible. Although'the plaintiff’s main-witness as to the existence of the defect in the -sidewalk was indicted for perjury and plead guilty and the affidavits of twehty new witnesses áre produced showing that the sidewalk was not defective, a, new trial -will not be granted on the grounds of newly-discovered evidence if in fact the plaintiff, indicted for perjury at the same time, was acquitted in spite of the evidence given by the new witnesses. This, because there have been already two adjudications determining that a. defect in the .sidewalk existed. Appeal by the defendant, The Village of Spring Valley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 8th day of January, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said cleric’s office on the 15th day of January; 1906,. denying the. defendant’s motion for a- new trial made upon the minutes. . Also an appeal by- the defendant from an order of the Supreme Court made at the Rockland Special Term, and entered in the office of the clerk of the county of Rockland on the 14th day of December, 1906; denying the defendant’s motion for a new trial made upon the 'ground of newly-discovered- evidence. In the first of these appeals the-defendant seeks tq reverse a judgment and an order denying a mo.tion'for a new trial principally upon the ground that the verdict was against the weight of evidence. In the second appeal it seeks to reverse an order denying its motion for a new trial .on the ground of newly-discoveredjp9 evidence. P. Van Alstine [David P. Hall with him on the brief], for the appellant. E. F. Lovatt, for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: I do not think the first appeal should prevail, but that the judgment and order should be affirmed. Late in the evening of November 27, 1904, the plaintiff, a man. between sixty-five and seventy years old, was returning to his home, walking in the roadway. Hearing or-seeing teams, he suggested to his companion, the .woman with whom he. boarded, that they had better go upon the sidewalk. He did so at once, and almost immediately fell. He testified that he stepped, into a hole, directly in the sidewalk, about two feet across and a foot and .a half deej), which had evidently been caused by a washout. He knew the exact hole was there, eight ' months previous,, but he supposed, of course, it had been fix.ed. He said the sides of the hole were slanting, and that there was some ice. The defendant seeks to make out that the accident was caused by his' slipping on the ice, and that it is not liable. If the plain- . tiff’s evidence is correct about the size" and shape of this hole, the hole, and .not the ice, was the proximate cause o'f his. injury. He was corroborated as to the location and size of the hole by the witness Way, and corroborated as to the fact that there was a hole thereby his companion and the witness Johnson. 'There was some corroboration of his theory in the cross-examination -of the witness Seaman, called by the defendant, one of the trustees of the village, where that witness testifies that there was, at the time of the trial, á well-defined spot right where the'plaintiff fell, which was filled in with a quantity of .stone-and earth, and that the stone is now projecting two or three inches above the ground. There is also some corroborationL' of the plaintiff’s story in the minutes of -the trustees of the village.- The trouble with the minutes 'is that, they are somewhat indefinite as to the exact condition which needed repairing. There, were resolutions directing that notice be sent to the owner’of the premises in front of which plaintiff met'his accident, requiring her “ to repair the sidewalk between her. property occupied by Louis Snyder and the IVIain Str. Bridge.” I do not think, however, that there was any error in the admission of these resolutions (although their probative force was not as great as could have been desired), for the reason' that the plaintiff and the witness Way testified that the hole had been in-the same condition for eight months'or more. The defendant swore nine witnesses, as I count them, who testified with more or less assurance that there was no hole in the sidewalk where the plaintiff was- injured at the time in question. Some of these witnesses were interested as officers or trustees of the village, or related to such'officials: Others were apparently'disinterested. On this record I feel very certain that it' is our duty to allow the verdict to stand. The other record presents a rather unusual state of facts. After the trial the plaintiff and his main witness, Way, were indicted fop' perjury on account of their testimony as to the presence of this hole. They both pleaded not guilty. At the next term of court Way withdrew liis plea and pleaded guilty ;■ the plaintiff stood trial and was acquitted. A few days after the plaintiff’s acquittal, sentence on Way was suspended. A couple of months "after "that, the defendant made a motion, which was argued before the same judge who tried the case, for a new trial on the ground of newly-dis-' covered evidence. The motion was- based upon the confession of Way and the affidavits of something like twenty new witnesses, who deposed' that there was no hole in the sidewalk at the' place where ■plaintiff was "injured at that time. As far as the evidence of these twenty affiants as to the absence of the hole is. concerned,, it must stand to reason that .their evidence could with reasonable diligence have been procured before the trial. Otherwise as to Way’s confession. , But what stands out strongly and singularly in this case is the fact that although practically all of the witnesses who were sworn on the civil trial, and all.of the affiants whose affidavits are annexed to the motion papers, were .examined oil behalf of the People in the criminal trial, yet the plaintiff was acquitted. There have.been what might almost be called two adjudications upon the facts, by juries, that the hole existed, and it does not seem to me. as though, if the proof newly discovered were presented to another jury,- the result would likely.be changed! '■ . The'judgment and both orders should be affirmed, with costs. "Present —Woodward,-Jenks, Gaynor and Rich,. JJ, Judgment and orders unanimously affirmed, with costs.