GILLETT v. DEPUY et al.
(Supreme Court, Appellate Division, Third Department.
March 7, 1900.)
New Trial — Nbwly-Discovered Evidence.
Where, from the character of the proof offered, it appears that 'plaintiff was not fully advised as to the defenses to be interposed, a new trial should be granted for newly-discovered evidence to meet them.
Appeal from Sullivan county court.
Action by G. Byron Gillett, as administrator, etc., of Joseph A. Gillett, deceased, against Darius Depuy and others, to foreclose mortgage. From a denial of a motion for new trial, plaintiff appeals.
RGTGrscd
Argued before PARKER, P. J., and HERRICK, MERWIN, SMITH, and KELLOGG, JJ.
W. J. Groo, for appellant.
R. R. Jelliff (T. F. Bush, of counsel), for respondents.
PER CURIAM.
In view of the character of proof offered by defendant to show payments upon the mortgages sought to be foreclosed, we think the plaintiff was not fully advised that the question of the existence of chattel mortgages was involved, nor the question of their validity, nor the question of their payment, nor the question of either of these chattel mortgages having been taken in part payment of the real-estate mortgages. In view of the treatment accorded by the county court to these chattel mortgages apparent in the computation, we think the county court should have granted a new trial on the affidavits presented.
Order denying the motion is reversed, and a new trial is granted, with $10 costs and disbursements to appellant.