Hamex Trading Corp. v. Hungarian Discount & Exchange Bank

Rabin, J.

(dissenting). I dissent and vote for a reversal of the order granting a new trial on the ground of newly discovered evidence. It does not seem at all probable or even possible that the proposed additional testimony could bring about a different result. Defendant bank and the Poultry Society were separate and distinct legal entities and the proposed testimony of the witness Deutsch would be entirely inadequate to establish the contrary. The fact that some of the directors of one were also directors of the other would not place liability on the bank. No claim is made that the defendant was even a stockholder of Poultry. The witness asserts that the bank was the factor for Poultry. That has been conceded by the defendant and no new proof is needed on that issue. In fact, it strengthens the bank’s position that it was an entity separate from Poultry. At best then, all that could be offered on a new trial would be the conclusion of an obviously interested witness to the effect that the defendant bank and not the Poultry Society was the principal in the transaction. But such testimony would be merely cumulative of that already introduced and could not possibly overcome the force of the documentary evidence in the case.

The order granting a new trial should be reversed and the motion denied.

Peck, P. J., Cohn and Bastow, JJ., concur in decision; Rabin, J., dissents and votes to reverse in opinion in which Breitel, J., concurs.

Order affirmed, with $20 costs and disbursements to the respondent. No opinion.