Mully v. Drayn

• Decision Date: 16 January 1976
• Citation: Mully v. Drayn, 378 N.Y.S.2d 187, 51 A.D.2d 660 (N.Y. App. Div. 1976)
• Parties: Frank MULLY, Plaintiff, and Louise Mully, Appellant, v. Robert K. DRAYN and Betty Jean Drayn, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 187

378 N.Y.S.2d 187

51 A.D.2d 660

Frank MULLY, Plaintiff, and Louise Mully, Appellant, v. Robert K. DRAYN and Betty Jean Drayn, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Rothblatt, Rothblatt, Seljas & Peskin, John Rothblatt, New York City, for appellant.

Croucher & Gifford, Thomas Croucher, Canandaigua, for respondents.

Before MARSH, P.J., and SIMONS, MAHONEY, GOLDMAN and WITMER, JJ.

MEMORANDUM:

Plaintiff appeals from an order denying her motion to vacate a 1971 judgment in this boundary line dispute on the basis of newly discovered evidence (CPLR 5015(a)(2)). During the trial, the critical issue was the location of the starting point for the deed descriptions, described as the point where Route 64 and the southern boundary line of Town Lot #5 intersected. The disputed boundary line between the properties of the parties was located 375 feet northerly of this point. Relying upon 1964 state highway maps showing the intersection of Route 20 A and Route 64, the parties located the south line of Town Lot #5 at the center line of Route 20 A. In 1974 appellant moved to vacate the judgment, alleging that a newly discovered highway map, dated in 1923, established that Route 20 A had been relocated subsequent to the date of the deeds and that the new proof would establish the boundary line further south in plaintiff's favor.

Applications pursuant to CPLR 5015(a)(2) to vacate a judgment on the grounds of newly discovered evidence are addressed to the discretion of the trial court, and an appellate court will not interfere with the decision unless the trial court has abused its discretion (Buckman v. Perry's Taxi, Inc., 24 A.D.2d 913, 914, 264 N.Y.S.2d 694, 696; see also Cornwell v. Safeco Ins. Co., 42 A.D.2d 127, 134, 346 N.Y.S.2d 59, 67).

The moving party must show to the trial court's satisfaction that the newly discovered evidence is material, is not merely cumulative, is not of such a nature as would merely impeach the credibility of an adverse witness and that it would probably change the result if a new trial were granted. He must also show that the evidence has been discovered since the trial and could not have been discovered before the trial by the exercise of due diligence (Cornwell v. Safeco Ins. Co., supra, 42 A.D.2d 127 at 134, 346 N.Y.S.2d 59 at 67; see also CPLR 5015(a)(2)).

Appellant's application is based upon a 1923 state map, a public record which existed at the time of trial, was...