
    Benjamin Croner and Morris Kohn, Respondents, v. Farmers’ Fire Insurance Company of York, Pennsylvania, Appellant.
    
      Motion for a rehearing of a motion for a new trial — where it may he heard — grounds therefor.
    
    A motion for a rehearing of a motion for a new trial may he entertained by the justice who presided at the trial, although not made at Special Term or at the Trial Term at which the cause was tried, and on such motion exceptions taken to the introduction of testimony on the trial may he properly considered.
    The question whether a new trial will be granted where four out of five similar actions have resulted in recoveries upon the part of the plaintiffs and the fifth is decided against the plaintiffs for the reason, as claimed on the motion for a new trial, that evidence was produced in the fifth action which had not been presented in the other four and by which the plaintiffs’ counsel was surprised, considered by Goodrich, P. J.
    Appeal by the defendant, the Farmers’ Fire Insurance Company of York, Pennsylvania, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of February, 1897, conditionally setting aside the verdict of a jury in favor of the defendant and granting a new trial, and also from an order entered in said clerk’s office on the 20th day of February, 1897, denying the defendant’s' motion to vacate and set aside the said order or for a resettlement of the same. ■
    
      Robert Thorne, for the appellant;
    
      Ira Leo Bamberger, for the respondents.
   Goodrich, P. J.:

This action was brought upon a policy of insurance, was tried oefore a jury in November, 1896, and resulted in a verdict for the defendant. A motion for a new trial was made on the usual grounds specified in section 999 of the Code of CiviTProcedure, and judgment was entered on December nineteenth.

On January 12, 1897, the plaintiffs’ counsel procured a formal order to be entered denying nune pro timo the motion for a new trial. On February second the plaintiffs obtained an order to show cause, before the justice who presided at the trial, why the plaintiffs should not' have leave to renew the motion for a new trial made at the Trial Term, for the reasons stated at the time of such motion, and for.the additional reasons that the plaintiffs were taken by surprise at the trial, and on the ground of newly-discovered "evidence. On the hearing of this motion on February fifteenth, an order was entered granting the motion on the condition that the plaintiffs should stipulate to accept from the defendant in full settlement of their claim the sum of $687, with interest, such amount being based on verdicts in other causes brought against other insurance companies for the fire loss upon similar policies which were tried subsequently to the trial of this action, and resulted in verdicts for the plaintiffs.

It appears that the plaintiffs were insured in seventeen different companies, three of which settled with the plaintiffs, while fourteen defended, and that trials had been had in five of the latter, in four of which the plaintiffs recovered verdicts. The goods insured were gloves, wdiich were on the plaintiffs’ premises at No. 508 Broadway, New York city. The fire occurred December 26, 1894. An appraisal was had, by which it appeared that the original value of the stock at the time of the fire was over $27,000; that the original value of the goods identified after the fire amounted to $17,000; that the damage to them was about $11,000, and that the value of the goods burned out of sight ” was about $10,000. The defendant, before the jury, claimed, that it was impossible for such an amount of goods to have been piled up in the burned' space of the premises and destroyed, and at the close of the trial its counsel produced some cases of the damaged-goods which had been removed from the premises by the underwriters and which were in such a condition and of such a character as, undoubtedly, materially affected the minds of the jurors who saw them and their contents; and the plaintiffs claimed that they had no opportunity to explain, in the hurry of the close of the trial, that these goods did not fairly represent the real facts.

After the fire the firm of J. Cohen & Sons, termed wreckers, were employed by the underwriters to save what could be saved, and they gathered up a large quantity of fragments which were put into four cases, two of which were the ones produced at the trial, and it was claimed that these represented fragments of all of the goods in ■ the store and that no goods were actually, destroyed or “ burned out of sight.” It was for the purpose of emphasizing this assertion that the defendant produced the two cases of damaged goods at the trial These cases contained 2,755 pairs of gloves, some of them being partly burned fragments of woolen' gloves, and were brought into court just before adjournment for the day and at the close of the evidence. The plaintiffs’ counsel, in the moving affidavits, states that he was taken completely by surprise by the production of the cases, and that, owing to the lateness of the hour, he was unprepared to produce the other two cases, and that if they had been produced the result of the trial would have been different. It is not shown that in the four other actions which have been tried any such element of evidence was introduced by this defendant, and these actions resulted in verdicts for the plaintiffs. Certainly it is to be taken into consideration that we have the anomaly of five actions growing out of the same fire, in four of which verdicts were rendered for the plaintiffs, while in the present action, with the damaged goods presented to the jury without explanation and without the production of the other two cases, there was a verdict for the defendant. Such a condition of affairs leads us to believe that the orderly administration of justice will be conserved by a new trial, where the fullest opportunity will be afforded for the investigation of all the attendant circumstances.. ■

We have no doubt' of the power of the court to entertain the motion, although it was not made at' Special Term or at. the Trial Term at which the cause was tried. This motion was. for a rehearing of the motion for a new trial which was made at the time of the trial; but aside from this, the power of the court over its judgments is not dependent on or limited by section 724 of the Code of Civil Procedure, and the court may, in its own discretion and in the exercise of the control over its own judgments, open them for sufficient reason in the furtherance of justice. (Vanderbilt v. Schreyer, 81 N. Y. 646 ; Ladd v. Stevenson et al., 112 id. 325 ; Donnelly v. McArdle, 14 App. Div. 217: Rost v. The Brooklyn Heiqhts R. R. Co., 10 id. 477.)

There were also exceptions to certain testimony introduced by the defendant, which maybe considered in deciding this appeal, and we are of opinion that the judgment entered upon the verdict would have been reversed for error in the admission of such evidence.

The orders appealed from are affirmed.

Cullen, Bradley, Bartlett, and Hatch,. JJ., concurred, on the ground last stated in the opinion.

Order granting a new trial affirmed, with costs!

Order denying motion to resettle order affirmed, with ten dollars '. costs and disbursements.  