Seventh Ave. Delicatessen v. Manhattan Provision Co.

• Decision Date: 02 November 1955
• Citation: Seventh Ave. Delicatessen v. Manhattan Provision Co., 146 N.Y.S.2d 25 (N.Y. Sup. Ct. 1955)
• Parties: SEVENTH AVENUE DELICATESSEN v. MANHATTAN PROVISION COMPANY, Inc.
• Court: New York Supreme Court

Page 25

146 N.Y.S.2d 25

SEVENTH AVENUE DELICATESSEN v. MANHATTAN PROVISION COMPANY, Inc.

Supreme Court, Kings County.

Nov. 2, 1955.

Robert R. Kaufman, New York City, for plaintiff.

Lawrence J. Goldstein, Joseph Apfel, New York City, for defendants.

JOHNSON, Official Referee.

After the undersigned had heard the evidence in this fraud action, under an order of reference of hear and determine, a written decision in favor of the defendants was rendered in June, 1955. On that date, and for a substantial time before it, there had been in file in the Appellate Division, First Department, charges against one of the defendants herein, a member of the Bar, of violating Canons 6 and 37 of the Canons of Professional Ethics. Several days after the decision was rendered that lawyer was found guilty of these charges by the Appellate Division and was suspended for six months. In re Berler, 286 App.Div. 210, 142 N.Y.S.2d 259.

No reference was made during the trial to the pendency of the charges, but an application was made, long after the Appellate Division decision, for a new trial because of the prior pendency of these charges. At the time the motion was heard the charges had already been passed upon, but the motion referred to them, without details and without dates, as if these charges were still pending. That motion for a new trial was denied on the ground that due diligence would have shown the pendency of these charges, and the evidence, therefore, was not 'newly discovered'; the nature of the charges was not discussed in that decision.

The plaintiff has made another motion, substantially later, for a new trial upon the ground that the charges have been sustained; it was referred by the justice in Special Term to the undersigned to hear and determine; this seems to have been the proper practice. Travitzky v. Schamroth, 277 App.Div. 1018, 100 N.Y.S.2d 317. At the hearing of this motion it was agreed that there might be an extension of the motion papers to include a reargument of the previous motion decision: the following relates, therefore, to both motions which, in effect, have been consolidated.

The following subjects are now to be considered: (1) Is this newly discovered evidence?

The problem consists of two parts, namely, the pendency of the charges, which were a fact before the trial herein ended, and the later decision of the Appellate Division, made after its termination but long before the decision by the undersigned. There was no denial by the lawyer, on the first hearing of the motion for a new trial, that the charges were pending during the trial; at that time the problem was whether due diligence would not have uncovered the existence of these charges so that they could have been presented to the lawyer when he testified on this trial, although at that time he had not yet been found guilty. It may be that the pendency of charges, not yet passed upon, would be ignored if an objection were then made.

The plaintiff, however, was under the duty of due diligence to investigate the lawyer's past, because the accusation leveled at him in this 1955 trial was that he had wrongly represented more than one party at the 1951 conferences out of which this 1954 lawsuit arose. That should have suggested to reasonably diligent trial counsel that such a violation of ethics might have happened before, and a slight effort would have resulted in discovering these charges on file. Therefore the evidence that was available at and during the trial (that charges were pending) could have been obtained with reasonable diligence; since the trial was before the undersigned, and not a jury, it is impossible at say that the evidence would not have been received.

The value of the evidence, because of the mere pendency, would have been slight, but it was not even offered, and failure to offer it grew out of the lack of the required diligence on the part of plaintiff's attorney. That evidence, therefore, available at that time, was not sufficient basis for a new trial because of the failure to exercise due diligence in presenting it at the trial.

(2) The June 28, 1955, decision of the Appellate Division was about a week after the trial closed, but several weeks before the decision of the undersigned, and weeks before the briefs filed herein; even during that period due diligence would have uncovered the charges or the Appellate Division ruling. To now offer that proof seems to ignore the principle that the motion for a new trial should be made with due diligence after the facts relief upon were discoverable. Oakdale Contracting Co. v. City, 262 App.Div. 494, 30 N.Y.S.2d 545.

(3) If, however, assuming the worst against the defendant, the motion be considered as if he had been found guilty before the trial, the motion for a new trial on that ground must meet certain tests. Mr. Tripp, in his admirable 'Guide to Motion Practice' (at pp. 322-3), collects the cases. The plaintiff apparently thinks that these sustained charges are sufficient to obtain a new trial because of their nature, but the right test seems to be whether such evidence is material and 'so positive and convincing, that it will, in all probability, produce a different result, if a new trial is had.' Collins v. Central Trust Co., 226 App.Div. 486, 235 N.Y.S. 511, 515. The evidence must go 'beyond mere impeachment, and disclose that perjury has been committed on a material issue, or has independent probative value on a material issue.' Tripp, p. 323, citing Laskofsky v. Pocahontas Consol. Collieries Co., 179 App.Div. 861, 167 N.Y.S. 226, and other cases. It is not enough that the alleged newly discovered evidence would merely enable to defeated party to impeach credibility, Corley v. New York & H. Railroad Co., 12 App.Div. 409, 42 N.Y.S. 941; the application must go beyond that and must disclose that perjury has been committed on a material issue. Soogoff v. Rosenkranz, 222 App.Div. 694, 224 N.Y.S. 736; Bloch v. Szczukowski, 229 App.Div. 394, 241 N.Y.S. 462; Cleven v. Interborough, 143 Misc. 594, 256 N.Y.S. 111; Gentile v. Marcus, Sup., 55 N.Y.S.2d 901.

To summarize: The many decisions on the question establish that: Parties must prepare for trial, seek reasonably relevant evidence, and if, after trial, offer evidence that could reasonably have been found with due diligence, a new trial will be refused. Even relevant evidence, not within the above requirement, must be such that, in all probability, it would change the result; not that it might do so. Evidence merely discrediting one who has testified is not enough, even if it was not previously discoverable.

(4) The nature of the offense of which the Appellate Division has found the lawyer guilty appears in this quotation from the opinion: 'These [canons] proscribe representation of conflicting interests [Canon 6] and forbid acceptance of employment which involves or might involve a disclosure or abuse of confidences of a client [Canon 37].'

The allegedly fraudulent misconduct of the lawyer in this suit consisted of what was...