
    Demitreas Gramiticakis vs. Michael Politakis
    No. 76228.
    October 5, 1931.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for the plaintiff in the sum of $575.70.

This is an action in which the plaintiff seeks to recover from the defendant on two separate and distinct items.

The first claim of the plaintiff is for $125 plus interest.

Plaintiff testified that with the defendant he borrowed from one Peter Leige the sum of $250, that he and the defendant were partners at that time in running a restaurant on Pine Street in the City of Providence; that the money received was used in the business to pay bills; that about two years after the money was borrowed, he repaid the loan.

Leige testified that the note on which he loaned $250 was paid to him by one Josephson, to whom the plaintiff said that he gave the money for payment to Leige.

Politakis admitted that he had a restaurant with Gramiticakis but said he signed the note as otherwise Leige would not loan the money to Gramiti-cakis. . He denied that money was used in the restaurant business.

Themistocles S. Josephson testified that he had known the parties for about 27 years; that they were in business as partners; that he went to Leige who agreed to loan the money but not on the signature of GramiG-■eakis alone. He wanted the signature of Politakis as a guarantor.

For plaintiff; John F. Conaty, Calvert E. Casey, Joseph H. Coen.

For defendant: Philip V. Marcus.

The second claim on which the suit rests is for $319.02, with interest.

Plaintiff testified that one Christides borrowed $400 from the Morris Plan; that he and Politakis signed the note as co-makers; that a portion of the new loan was used to cancel an earlier note given by Christides to the Morris Plan, and that $266 in cash was actually paid by the Morris Plan on the $400 note and that all the cash paid was given to Politakis; that he received nothing. He further testified that he was threatened with suit by the holder of the note and was obliged to pay the sum of $319.02. The defendant denied that he received any cash on this note.

The defendant in support of one of the grounds of his motion for a new trial has filed an affidavit of Themistocles S. Josephson, tending to explain certain phases of the testimony in the ease.

The Court thinks, however, that the affidavit offers no basis for a new trial. The trial lasted part of two days; Josephson was in Court and testified, and no sufficient reason is now given why he should not have testified at the trial in reference to the matters brought out in the affidavit.

The jury found in favor of the plaintiff. There appears to the Court no inherent improbability in the plaintiff’s testimony. It was a question, largely, of the credibility of witnesses. The jury saw the witnesses and had the opportunity of observing them while testifying. They reached a conclusion favorable to the plaintiff and it seems to the Court that their verdict does substantial justice between the parties.

Defendant’s motion for a new trial is therefore denied.  