
    Philip Matarese vs. Emelio Iavazzo, App’t.
    No. 86135.
    April 16, 1932.
    For plaintiff: Cianciarulo & Cianci-arulo.
    For defendant: L. Y. Jackvony & Benjamin Winicour.
   POULIOT, J.

After a jury had returned a verdict for the defendant, plaintiff moves for a new trial on six grounds.

There is no merit to the first five grounds set out in the motion as the plaintiff apparently failed to prove his case by a preponderance of the evidence. The sixth ground alleges new and material evidence discovered since the trial and not then available.

A material part of the case was whether or not the plaintiff and defendant were partners in conducting the business or whether the defendant used the name of tihe plaintiff in his own business to the defrauding of the plaintiff.

The affidavits submitted indicate that the defendant treated this business as bis own and sold it without any reference to the plaintiff having any interest in it.

It seems to the Court that there is evidence in these affidavits which, if testified to and believed by the jury, would warrant a finding different than the one that was reached. This evidence ought to be submitted as having a material bearing on the controversy.

Plaintiff’s motion for a new trial granted.  