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(192 App. Div. 62)

HARKINS v. SIZER FORGE CO. (Supreme Court, Appellate Division, Fourth Department. May 21, 1920.) 1. New trial w119—Motion made more than eight months after knowledge

of new evidence too late.

Applicant for a new trial, who waited from November 20, 1918, until August 5, 1919, before making the motion on the ground of newly discovered evidence, was guilty of laches, where his attorney must have known of the alleged newly discovered evidence prior to November 20,

1918. 2. New trial 108 (4)—Newly discovered evidence held not sufficient to war.

rant grant.

Where a number of witnesses for plaintiff in an action for death testified on the trial that deceased got on a girder by means of a ladder, new evidence of one witness to the effect that deceased reached his work by way of a cage on top of a crane held not such as would strengthen plaintiff's case, and was not sufficient ground for granting a motion for a new trial.

Appeal from Special Term, Erie County.

Action by Eva Bell Harkins, as administratrix of the estate of Ira D. Harkins, deceased, against the Sizer Forge Company. From an order granting plaintiff's motion for a new trial on the ground of newly discovered evidence, after a judgment in her favor was reversed on appeal and cause dismissed (186 App. Div. 937, 172 N. Y. Supp. 895), defendant appeals. Order reversed, and motion denied.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Love & Keating, of Buffalo, for appellant.
Hamilton Ward, of Buffalo, for respondent.

CLARK, J. Plaintiff's intestate was killed while engaged as a lineman, fastening a telephone wire at the top of a steel column in the building belonging to the defendant. He was not an employé of defendant, but of the Bell Telephone Company. This action was originally tried in October, 1917, and resulted in a verdict in favor of the plaintiff. On appeal to the Appellate Division, the judgment and order were reversed, and the complaint was dismissed, on the ground that no actionable negligence had been established. Harkins v. Sizer Forge Co., 186 App. Div. 937, 172 N. Y. Supp. 895. Plaintiff carried the case to the Court of Appeals, and that appeal is still pending

This newly discovered evidence upon which the order appealed from was granted is pointed out in an affidavit of a witness named Robert Bruce, and in his affidavit he claims that he saw decedent, on the day he was killed, climb out of the crane operator's cage on top of the crane, from which he went over a crosspiece to the iron girder upon which he was to fasten a telephone wire; that he saw him walk across the top of the crane to the crane tracks, and along the tracks about 25 feet, until he reached an upright girder, when he sat down, partly over the track, and hooked his leg around one of the upright

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(182 N.Y.S.) girders, and was boring a hole through it, when he was killed by the crane running him down; and that at no time after he climbed upon the girder had he gone to the ground previous to the accident.

In the immediate vicinity of where intestate was killed there were two parallel girders, one known as the inside and one the outside girder, and they were at least 22 inches apart. The crane at the time of the accident was being operated exclusively on the inside girder. The wires that were to be fastened by intestate were to be placed upon a plate over the outside girder, and there was no occasion for decedent to be on the inside girder at any time.

Several witnesses for the plaintiff testified on the trial that decedent went to his work by way of a ladder from the ground to the outside girder, that was clear; no track being on that girder. Not a witness on the trial testified that decedent reached the place of the accident by way of the crane operator's basket. Decedent had been notified to go up to his work on a ladder, which was placed against the outside girder. His work required him to be on this outside girder. He had no work to do on the inside girder, where he met with the accident. If he had remained on the outside girder, where his work required him to be, he would have been in no danger. For some reason, undisclosed by the evidence, he got over on the inside girder, which ran parallel to the outside one, and this seems to have been a most unfortunate mistake,

The theory upon which plaintiff asks for a new trial is that the evidence of the witness Bruce would tend to show that Harkins went to the place where he was killed through the crane operator's cage, and that the operator knew of his presence on the track, and should not have negligently run him down. But so many of plaintiff's witnesses on the trial testified quite the other way as to how decedent reached his work, all testifying that he went up by way of a ladder, and not by way of the crane cage, that it is hard to see how this so-called newly discovered evidence is of such a character that it would probably strengthen plaintiff's case.

After plaintiff was defeated on the ground that no actionable negligence was shown against defendant, it is sought by the testimony of this witness Bruce to show that decedent went an entirely different route, to wit, through the crane operator's cage, and that the latter saw him and knew that he was out in front on the track where he was operating his crane, and that he negligently ran him down, and defendant is responsible for its employé's act.

In the answering affidavits the crane operator denies that he saw decedent go through the cage, or that he had any knowledge that he was on the ck in front of the crane. Take that testimony, with the testimony of plaintiff's witnesses on the trial, to the effect that decedent went to his work by a ladder, instead of through the crane operator's cage, it is hardly to be expected that this new evidence would help plaintiff's case, for it would be advancing a theory unsupported by any other evidence in the case.

[1,2] Moreover, plaintiff was guilty of laches in making the application for a new trial. Her attorney visited the scene of this

accident in August, 1918, with this new witness, Bruce, and that was after the original judgment had been reversed in the Appellate Division, so he must have known at that time what evidence Bruce would give on another trial. After the reversal of the judgment in the Appellate Division on the ground that plaintiff had failed to show actionable negligence, she commenced another action on August 12, 1918; but it was discontinued upon stipulation November 20, 1918, and plaintiff waited from that time until August 5, 1919, before making this motion.

Plaintiff is not entitled to a new trial, for the reason that she was guilty of laches, and also on the ground that it cannot be said that the new evidence would probably strengthen her case, in view of the fact that the theory now advanced in order to charge the defendant with negligence is inconsistent with the theory adopted at the time of the trial. If it was true, as testified to then by the plaintiff's witnesses, that decedent went up a ladder to the outside girder, it is incredible that he could have gone by way of the crane operator's cage, as now claimed by this new witness, Bruce; it clearly appearing that decedent had not at any time gone to the ground after he had first climbed upon the outside girder by way of a ladder. Biddescomb v. Cameron, 58 App. Div. 42, 68 N. Y. Supp. 568; Pospisil v. Kane, 73 App. Div. 457, 77 N. Y. Supp. 307.

The order appealed from should be reversed, with costs.

LAMBERT, DE ANGELIS, and HUBBS, JJ., concur.

KRUSE, P. J. (concurring). This is not the usual application for a new trial upon the ground of newly discovered evidence, where the moving party has met an adverse verdict. Here the jury found for the plaintiff, and the judgment was reversed in this court, and the complaint dismissed, upon the ground that the evidence was insuffcient as a matter of law to sustain the verdict.

The vital fact in the newly discovered evidence is that the craneman had knowledge that plaintiff's intestate was at work upon the girders and likely to be injured by the movement of the crane, as was done. I think the evidence upon the trial already had was sufficient to warrant the jury in so finding. If all the evidence on such trial does not make out a case of actionable negligence, the new evidence would not, as it seems to me, supply the deficiency. My own view is that the evidence upon the trial made out a case of actionable negligence against the defendant in operating the crane without warning the telephone employés at work upon these girders. The cranemen knew, or should have been told by defendant, of their presence, and precaution taken against injuring them by operating the crane where they were at work. These workmen were more than bare licensees. They were invited by defendant, and doing work in which it was beneficially interested.

(182 N.Y.S.) (111 Misc. Rep. 1) OBELISK WATERPROOF CO. v. CLOHER, County Comptroller, et al.

(Supreme Court, Special Term, Oneida County, March, 1920.) 1. Mandamus Om71-Court may compel performance of ministerial acts.

The purpose of a writ of mandamus is to compel official action, and when the duty sought to be enjoined is solely of a ministerial character

the court can direct the performance of the act. 2. Mandamus c70_Court can only compel exercise of discretion.

When an act is judicial, involving the exercise of discretion, all the

power the court has is to command the exercise of such discretion. 3. Mandamus ew101—Writ lies to compel audit, when of a ministerial char

acter.

A public officer, invested with auditing powers, cannot arbitrarily refuse an audit; and where, upon the conceded facts, it is his duty to make such audit, it is of a ministerial character, which may be compelled by

mandamus. 4. Mandamus Om 101-Duties of county comptroller as to claims ministerial,

so that writ will lie.

Under Laws 1909, c. 466, under which county comptroller holds his office, and County Law, $ 235, requiring all claims against a county to be filed in his office before presentation to board of county supervisors, and requiring him to examine and report thereon before they are audited and ordered paid by board, and to find whether claims are just and in accordance with contract therefor, and to certify his examination with advice as to allowance, his acts are purely ministerial, so that their execution may be compelled by mandamus, notwithstanding he went beyond his authority

and pronounced upon the legality of the contract. 5. Mandamus m10_Court will not compel county comptroller to act on in

valid contract.

While the county comptroller, under Laws 1909, c. 466, and County Law; § 235, has no authority to pass on the validity of a contract which is the basis of a claim presented for audit against the county, yet if such contract is in fact invalid, the court will not command him to act

upon it.

6. Counties www117—Contract for repairs to county courthouse awarded with

out advertisement construed to be valid; "local laws;" "orders;" "rules.”

In view of Laws 1908, c. 418, $ 4, authorizing boards of supervisors to enact local laws or rules governing their business, and of a local law enacted thereunder requiring all contracts involving expenditure of over ~200 to be awarded only after proper advertisement, and of a rule permitting suspension by unanimous consent, the board might so suspend a local law requiring advertisement, "local laws," "rules," and "orders" being used interchangeably, so that a contract thereafter made without advertisement was lawfully awarded.

[Ed. Note-For other definitions, see Words and Phrases, First and

Second Series, Local Law; Order; Rule.] 7. Counties Cw123—Board of supervisors held to have waived giving of bona county would lie for breach of the contract was without merit, as that would not furnish the contractor with the adequate and complete remedy to which he is entitled, where he had already performed work on the contract to the amount of $6,400 and by its terms was then entitled to be

required by contract.

Where a contractor for repairs on a county courthouse, who did not furnish the bond required by the contract, there being no requirement that such a bond should be given, aside from the contract itself, the board of supervisors by accepting the bond which was executed, and permitting the contractor to proceed with the work, waived the giving of any other se

curity. 8. Mandamus ww3(5)-Contractor's suit against county on contract held not

an adequate remedy.

In mandamus by contractor with a county to compel county comptroller to audit a certified claim, the comptroller's contention that a suit against For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

paid 85 per cent. thereof. 9. Mandamus Omo 15Failure to provide fund to meet contract no reason for

not compelling comptroller's audit.

That a county board or supervisors had provided no fund to meet a claim of a contractor for repairing the county courthouse was no reason why mandamus should not issue on the contractor's petition to compel audit of

an inspector's certificate as to the amount then due the contractor. 10. Mandamus cm 102 (1)-Writ does not lie to compel county comptroller to

sign a warrant for claim not audited.

Mandamus will not lie to compel a county comptroller to sign a warrant drawn on the county treasurer by the clerk and chairman of the board of supervisors in favor of a contractor, since the board had no right to act on the claim in advance of the comptroller's audit, and since the warrant did not conform to County Law, 8.235, in that it did not state the fund

against which it was drawn. 11. Mandamus Om 101-Writ held not to lie against county supervisors to com

pel allowance of contractor's claim.

Where the board of county supervisors did not refuse to audit and allow a contractor's claim on an approved certificate for work done, and where such an act in advance of the report by the county comptroller, under County Law, $ 235, would be premature, the writ must be denied as

against the supervisors. 12. Mandamus w 190—Where only part of relief sought is granted, no costs

should be allowed.

The allowance of costs in a mandamus proceeding is discretionary, and where only part of the relief asked for is granted, the settled rule in

equity is that no costs should be allowed to either party. Application by the Obelisk Waterproof Company for a peremptory writ of mandamus against William H. Cloher, Comptroller, and the Board of Supervisors of Oneida County. Application dismissed as to Board of Supervisors, and granted as against the Comptroller.

Timothy Curtin, of Utica, for petitioner.
Davies & Wilkinson, of Camden, for comptroller.
H. N. Harrington, of Rome, for board of supervisors.

EMERSON, J. The board of supervisors of Oneida county on August 5, 1919, entered into a contract with petitioner to make certain repairs upon the county courthouse for the contract price of $28,250. The contract provided that the work should be done under the supervision of one John G. Roberts, a member of the board, and that, upon his certificate of the amount of work done, 85 per cent. thereof should be paid monthly. The cantract further provided that the petitioner guaranteed the work for the period of 10 years, and that he should give security in the sum of $10,000 for the faithful performance of the contract.

The petitioner entered upon the performance of said contract, and on August 30, 1919, had performed worl- and furnished materials under and pursuant to the same of the value of $6,400. Roberts, the inspector, on that day gave it a certificate to that effect, and stated that the sum of $5,440, being 85 per cent. of said sum, was.

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