Berman v. Primack

DECISION.

FROST, J.

Heard on plaintiff’s motion for new trial after verdict for defendant.

This is a suit on book account to recover a balance of $87.41. Defendant admitted that books showed that amount to be due but did not admit that books were correct and contended that some at least of the deliveries alleged to have been made were never made. In support of this contention defendant asserted that he was in a hospital in Boston during certain months of 1923 for treatment of his eyes. Plaintiff asks for a new trial, among other grounds on the ground of newly discovered evidence and at the hearing produced an affidavit sworn to 'by Dr. Washburn of the Massachusetts Eye and Ear Infirmary, Boston, to the effect that one Jacob Primack was under treatment in the hospital in 1924 but not in 1923. In determining the questions at issue the jury might well have given much weight to defendant's evidence that he was not in Providence in the year 1923 when the plaintiff asserted that deliveries of meat were made to him. It was of course impossible for plaintiff to rehut defendant’s statement at the time it was given with the doctor’s evidence. The defendant, a man seventy-five years of age may well have been confused as to the year in which he received treatment.

For plaintiff: Arthur L. Conaty. For defendant: Robinson & Robinson.

The Court thinks that the evidence contained in the affidavit is of sufficient importance to a just solution of the problem presented by the case that an opportunity should be given the plaintiff to produce before another jury the evidence which he has obtained as to the whereabouts of the defendant in 1923 and 1924, and the motion for a new trial is therefore granted.