89 A.2d 218

FRED ZULLO v. CARMELLA ZULLO

Supreme Court of Connecticut

BROWN, C.J., JENNINGS, BALDWIN, INGLIS and O’SULLIVAN, Js.

Where the claimed newly discovered evidence was within the knowledge of the plaintiff at the time of trial, the petition for a new trial was properly denied. Since the plaintiff conceded that he participated in what he claims was a fraud on the court, he is not entitled to raise the question of fraud on this petition.

Argued April 1, 1952

Decided May 6, 1952

Petition for a new trial, brought to the Superior Court in Fairfield County and tried to the court, Bordon, J.; judgment denying the petition and appeal by the plaintiff. No error.

Milton H. Belinkie, with whom was Joseph G. Shapiro, for the appellant (plaintiff).

Paul V. McNamara, for the appellee (defendant).

JENNINGS, J.

The parties to this petition for a new trial are the same as those named in the preceding case. After the rendition of the verdict against him as related therein, the plaintiff herein brought this petition for a new trial on the ground of newly discovered evidence and the perpetration of a fraud upon the court. The petition was denied. The decision was correct on at least two sufficient grounds. The evidence was not newly discovered. The exhibit in which it is summarized shows that each item was within the knowledge of the plaintiff herein at the time of the trial of the former case. General Statutes 8013. In addition, the trial court in the case at bar found that the plaintiff herein was not a credible witness as to the facts thus sought to be introduced. Furthermore,

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since the plaintiff concedes participating in what he claims was a fraud on the court, he is not entitled to raise the question. “[W]hat a person has consented to, he cannot set up as an injury.” Dennis v. Dennis, 68 Conn. 186, 194, 36 A. 34.

There is no error.

In this opinion the other judges concurred.