People v. Marks
New York Supreme Court
This was' a motion for a new trial in an action on a recognizance, taken by a justice of the peace before indictment found, for the appearance of one Smith at the June oyer, in Dutchess county. On the trial, the plaintiff called the county clerk as a witness. On his cross-examination, it appeared that there was' a court of sessions, with a grand jury, between the taking of the recognizance and the June oyer.
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This was' a motion for a new trial in an action on a recognizance, taken by a justice of the peace before indictment found, for the appearance of one Smith at the June oyer, in Dutchess county. On the trial, the plaintiff called the county clerk as a witness. On his cross-examination, it appeared that there was' a court of sessions, with a grand jury, between the taking of the recognizance and the June oyer. Judgment was given for the defendant, on the ground that the recognizance was void, in not having required the- prisoner to appear at the next criminal court having jurisdiction of the…
1Opinion of the Court
Dean, Justice.
This testimony is material, because, if true, and it had been produced, the plaintiff would have been entitled to judgment. Nor is it cumulative, within any legal signification of that term. The application is not open to objection on either of these grounds; and raises distinctly the question, whether a party can ever obtain relief, by motion for a new trial, when he discovers that evidence within his reach, and of which, by ordinary diligence, he might have availed himself on the trial, would change, or probably change, the result.
The answer in this case fully apprised the…
2Cases cited2 opinions
- People ex rel. Oebricks v. Superior CourtNew York Supreme Court · 1830
- Knox v. Work, Pennsylvania Court of Common Pleas, Philadelphia County1809
3Cited by2 opinions
- Wabash Railroad v. McCormickIndiana Court of Appeals · 1899
- Cole v. Fall Brook Coal Co.New York Supreme Court · 1890