Wienckielun v. Barnatowicz ( 1934 )

CAPOTOSTO, J.

Action in assump-sit to recover money paid for alleged services which the plaintiff claims were never rendered. The jury returned a verdict for the plaintiff in the sum of $150. The defendant moves for a new trial and relies principally upon an entry in a book kept by the defendant or under his direction as “newly discovered evidence”.

For plaintiff: Curran, Hart, Gainer & Carr. For defendant:: Rosenfeld and Ha-gan.

The defendant received from the plaintiff various sums of money over a considerable period of time under the promise that he would secure her daughter’s entry as an immigrant from Poland to America. The evidence showed quite clearly that the plaintiff was taking advantage of a mother’s love and inexperience for his own pecuniary advantage. The verdict of the jury is just.

As for his claim of “newly discovered evidence”, it falls far short of the rule concerning such testimony. The book now in question was in the defendant’s possession at all times, was referred to in the trial, and had for some reason or other been temporarily “lost, strayed or- stolen”. Furthermore, the attempt is now made through the sudden and unexplained reappearance of this so-called record to contradict a collateral issue which would in no material sense disturb the soundness of plaintiff’s claim.

Motion for new trial denied.