
    Matthews v. Herdtfelder et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    1. Motion for New Trial—Finality of Order—Reconsideration.
    After verdict for defendant, plaintiff moved for a new trial, which the court denied, and the clerk made a minute of the denial, but no order of the court on the motion was ever signed or filed. Thereafter judgment was entered on the verdict in favor of defendant, but, after entry of the judgment, plaintiff asked for a reargument of his motion for a new trial, which was had, and a new trial granted, and an order to that effect duly entered. Held,, that the denial of the motion in the first instance was not final, and that the court was at liberty to reconsider its first ruling, and grant a new trial, at a later day of the same term.
    2. Evidence—Admissions—Joint Tort-Feasors.
    In an action against two joint tort-feasors, it appeared that shortly after the alleged tort one of the defendants visited plaintiff at the instance of the other, and made certain admissions respecting the tort, with a view to a compromise. Held, that evidence of such admissions was improperly excluded, they being offered, not to show an offer to compromise, but that defendant, procuring his joint tort-feasor to make certain statements, was bound by them.
    Appeal from circuit court, New York county.
    Action by Patrick Matthews against Jacob P. Herdtfelder and Francis P. Specht to recover damages for a personal injury alleged to have been sustained by plaintiff by reason of a collision of a truck owned by defendants, and driven by their employe, with the plaintiffs cart, thereby throwing him down and injuring him. Plaintiff offered evidence at the trial that one of the defendants had come to him at the instance of the other, conceded their driver’s fault, and desired plaintiff to accept a moderate sum in settlement of the claim, which evidence the court excluded. From an order granting plaintiff a new trial defendants appeal.
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      Thompson & Koss, for appellants. George W. Wilson, for respondent.
   Patterson, J.

This is an appeal from an order made at circuit, and granting a new trial to the plaintiff, after verdict in favor of 'the defendant, and under the following circumstances: When the verdict was rendered and recorded, the motion was made for a new trial, under section 999 of the Code of Civil Procedure. The minutes made by the clerk state, among other things, “Motion for a new trial denied.” That was on the 18th February, 1890. No order of the court was ever signed or filed on this motion. Judgment in favor of the defendant was entered by the clerk, as is usual in common-law cases, on the 21st day of February, 1890. On the 25th day of that month the plaintiff asked for a reargument of the motion, which was had; and on the 27th, being at the same term of the court, the motion was granted, and an order duly and formally entered. There was no such final or absolute disposition of the motion as deprived the judge at circuit of jurisdiction to reconsider his ruling. The term of the court had not expired, no final order had been entered, and he was at liberty, in furtherance of justice, to reconsider a mere formal ruling, and, on being convinced of his error, to put the parties in a situation that j ustice might be done. The fact that, intermediate the trial and the motion for reargument, judgment had been entered, does not affect the question. In the case of Voisin v. Insurance Co., 9 N. Y. Supp. 267, we held that an appeal to the general term from an order granting or refusing a new trial in an action tried before a jury might be taken, notwithstanding judgment had been entered against the appellant, and the time to appeal therefrom had expired; and our views in that case were sustained by the court of appeals. 123 N. Y. 120, 25 N. E. Rep. 325. Here, therefore, we have merely a decision announced, without ah order to make it obligatory or final, and while it was in that condition the judge, convinced that he had committed an error, and while the matter was still before him, considered it his duty to recall his decision, and make an order that would prevent a failure of justice. Passing from the'question of power to-make the order granting the new trial, and if we are to consider the grounds upon which it was based we would find no difficulty in sustaining it. Certain evidence was excluded. It consisted of admissions made by one of the defendants in an action in tort against two alleged joint tort-feasors. The defendants were copartners. One of them visited the plaintiff shortly after the occurrence, and made certain statements claimed to be admissions. Assuming they could not, standing alone, bind his co-defendant, the evidence offered was to show that the interview was had at the procurement of that co-defendant, and it was sought, not to show facts that would be privileged on the ground that an offer to compromise cannot be made evidence of liability under the well-settled rule of law, but, as the learned judge says, “the .plaintiff was prevented by the exclusion of the evidence at the outset from showing anything in reference to the conversations, and the court was not in a position to determine, under the distinctions made, (as to privileged statements,) whether the testimony was or was not admissible.” Order affirmed, with costs. All concur.  