Meyerson v. Travin , 151 N.Y.S. 584 ( 1915 )

Guy, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while, an employee o-f the defendants. The plaintiff alleges, in addition to other acts of negligence on the part of. the defendants, that at the time plaintiff entered defendants7 employment he was an infant between fourteen and sixteen years of age, and that defendants wrongfully and unlawfully took him into their employment in violation of. the Labor Law, without the..production of a certificate in accordance with the requirements of the Labor Law,

One of the principal-issues -of faet-.bearing upon the question of defendants ’ negligence and dwelt upon by the trial justice in the opinion filed in the case was as to the age of the plaintiff. The defendants introduced proof tending, to show that plaintiff was over sixteen years of age at the time of entering defendants’ employment. The.alleged newly discovered evidence upon.which .the motion for a new trial was based consisted of information furnished by a school board in Winnipeg, Canada, to the effect that in January, 1910, plaintiff was registered in one of the schools in Winnipeg as being then twelve years of age, and that again in the same school he was registered on September 1, 1910, as of the age of thirteen years; also information furnished by the principal .of another school in Winnipeg that on the 31st of January, 1910, plaintiff was registered in said school jn Winnipeg as twelve years of age, which would make the age of the plaintiff, at the time he .entered into defendants’ employment, between, sixteen and seventeen years; and also information in the shape of a certificate of the health board of New York city showing the birth of another child of plaintiff’s mother who, she testified, was two years younger than the plaintiff, as occurring in 1899, which would make the plaintiff’s age, as determined in' connection with her evidence, between sixteen and seventeen years at the time of-his employment by defendants. Plaintiff, in opposition to the motion, presented an affidavit of plaintiff’s mother attempting to controvert or explain the facts set forth in the moving papers; but the explanation is entirely of an unsatisfactory and unconvincing character.

• The evidence which the moving papers allege the defendants can produce on a new trial, if furnished in the form of competent proof, would seriously affect plaintiff’s right of recovery and, in view of the inconsistent and unconvincing character of plaintiff’s evidence, and the subsequent 'affidavits filed in opposition to this motion, the interests of justice require a new trial. °

Order reversed and judgment vacated and a new trial ordered, with costs to the appellant to abide the event. Appeal from the judgment dismissed, without costs.

Bijub and Gavegax, JJ., concur.

Order reversed and judgment vacated, and new trial ordered, with costs to appellant to abide event. Appeal dismissed, without costs.