Malley v. City of Rensselaer 272 A.D.2d 979

— Appeal from an order setting aside a verdict in favor of the plaintiff in a negligence action, entered in the Rensselaer County Clerk’s Office after a trial before a jury, and granting a new trial on newly discovered evidence. Plaintiff testified on the trial that he spent the entire day previous to the accident at the home of his parents, and did not leave there until 10:00 o’clock at night when he drove to the scene of the accident. On its motion for a new trial defendant. [City of Rensselaer] claimed that this testimony was false, and that plaintiff spent the afternoon of the day in question at a tavern in the village of East Greenbush, and was intoxicated at the time of the accident. In support of this charge defendant presented the affidavits of four *980individuals. Three of these affiants later repudiated their affidavits, and their testimony became worthless to sustain the motion. In addition it appears that the defendant produced a witness on the trial who testified that she saw the plaintiff in the tavern on the afternoon of the day of the accident. Defendant also produced on the trial some proof that plaintiff had been drinking. In the summation by defendant’s counsel these matters were called to' the attention of the jury. While the verdict is large the same rules must apply to the motion involved on this appeal as would apply in any other civil action. The defendant failed to support its application for a new trial by fresh evidence of a probative character, and by failing to show in a convincing manner that it exercised fair diligence in investigating before trial the issue of intoxication. The merits of the case otherwise are not before us at this time. Order reversed, on the law and facts, and verdict reinstated, with $50 costs and disbursements. Hill, P. J., Heffernan, Brewster and Foster, JJ., concur; Russell, J., taking no part.