Fernandez v. Security-First National Bank

FOURT, J.

After the second trial of the within action judgment was rendered for the defendant.

1

On the basis of newly discovered evidence the trial court granted plaintiff’s motion for a new trial. Defendant appeals from the order granting the motion.

A résumé of the material facts is as follows:

Plaintiff brought this action against defendant executor to recover the sum of $4,500, plus interest, after rejection of his creditor’s claim. The basis of the action was a purported loan made by plaintiff to deceased on or about January 1957.

On December 14, 1960, findings of fact and conclusions of law were filed and on December 16, 1960, judgment was entered in favor of defendant. On January 3, 1961, there was filed a motion for new trial (and/or notice of intention of) on behalf of plaintiff. One of the bases set forth therein was “3. Newly Discovered Evidence, Material for the Party (Plaintiff) Making This Application, Which He Could Not, With Reasonable Diligence, Have Discovered and Produced at the Trial.”

On January 10, 1961, four affidavits were filed in support of plaintiff’s motion for new trial. As disclosed by the affidavits, the alleged newly discovered evidence consisted of the following:

First,

the fact that plaintiff had, subsequent to the trial but prior to entry of judgment, taken a polygraph or lie detection test and the results thereof, and

second,

that plaintiff had located one Charles M. Hover, a percipient witness to the purported loan transaction between plaintiff and deceased.

[678]

Insofar as the evidence relating to the polygraph test is concerned this could not serve as a basis for the granting of a motion for a new trial on the ground of newly discovered evidence. The evidence is not admissible. (See

People

v.