
    Helen Scally vs. Patrick J. Scally
    Div. No. 25919.
    October 28, 1931.
    For petitioner: Cooney & Kiernan.
    For respondent: O’Shaunessey & Cannon.
   CHURCHILL, J.

Heard on motion of the respondent for a new trial.

This matter is before the Court on a motion for a new trial on the ground of newly discovered evidence.

While the motion is supported by the affidavit of the respondent, who sets forth what he expects certain persons to testify, the motion is not supported by the affidavits of such parties. Waiving this point, however, it is clear to the Court that no sufficient ground is disclosed for a new trial.

The point on which the application turns is newly discovered evidence in regard to a miscarriage suffered by the petitioner as the result of cruel treatment inflicted by the respondent. The testimony of the petitioner was corroborated by evidence given by one Eleanor Schmidt, who was called and who attended the petitioner soon after the event. The petitioner did not testify that she was treated by any physicians afterwards, but that, although she had seen a physician she did not state to him what had taken place because she was ashamed to do so.

If all of the newly discovered evidence as described in the respondent’s affidavit was produced, it would not be sufficient, in the opinion of the Court, to change the result. Moreover, the testimony of the petitioner in the whole case was corroborated by other witnesses in respect to a course of conduct which clearly amounted to extreme cruelty.

The motion for a new trial is denied.  