
    Maud L. Crane, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Mew trial—where a new trial is granted because the plaintiff testified falsely as to her health the defendant shoidd not be required to admit its negligence and the plaintiff’s freedom therefrom.
    
    The plaintiff in an action to recover damages for personal injuries, which she claimed to have sustained in. consequence of the alleged negligence of the defendant, obtained a verdict in her favor. The defendant made a motion for a new trial upon proof tending to show that the testimony given on the1 trial by the plaintiff and her mother, to the effect that the plaintiff had been in good health previous to the accident, was false, and the court granted the motion, upon condition that the defendant Should enter into a stipulation admitting its own negligence and the plaintiff’s freedom from contributory negligence.
    
      Meld, that the defendant should not be required to give such a stipulation, inasmuch as it might well be argued on a new trial that the plaintiff and her . mother had also falsely testified with reference to the facts relied upon to estab-. lish the defendant’s negligence and the plaintiff’s freedom from contributory negligence.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings' on the 5th day of October, 1900, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 8th day of October, .1900, denying the defendant’s motion for a hew trial made upon the minutes, and also from an order entered in said clerk’s office on the 6th day of March, 1901, granting the defendant’s motion for a new. trial on the grounds of newly-discovered' evidence upon condition that the defendant file a stipulation admitting - its. negligence and the plaintiff’s freedom from contributory negligence, which order provided for the absolute denial óf said motion upon a failure to give such stipulation.
    , I. R. Oelcmd, for the appellant.
    
      James G. Gropsey, for the respondent.
   Willard Bartlett, J.:

Upon the trial of this action both the plaintiff and her mother were witnesses and testified to the. circumstances of the accident upon the defendant’s railroad in which the plaintiff was injured. The plaintiff herself, after describing her sufferings subsequent to the accident, declared that she liad been in good health previous to the injury and had previously had no similar trouble. The mother testified : “ Previous to that accident my daughter was healthy and well always; she was a healthy girl always; 1 never had any trouble with her — never had any sickness; fat and ruddy cheeks.”

After the verdict in favor of the plaintiff the defendant discovered evidence tending to show that these statements as to the previous health of the plaintiff were untrue. ' This evidence was laid before the learned trial judge in the form of affidavits upon a motion for a new trial on the ground of newly-discovered evidence. Affidavits from the plaintiff and her mother were read in opposition to that motion, and the court finally concluded to grant the application, but only upon condition that the defendant should enter into a stipulation admitting its own negligence and the plaintiff’s freedom from contributory negligence, so that upon the new trial no question should remain open for litigation except the amount of damages to which the ¡plaintiff might be entitled.

The papers upon the motion amply support the action of the learned judge in deciding to grant a new trial; but he must, have overlooked a feature of the case which, as it seems to us, would render it inequitable to exact the required stipulation from the defendant. The mother and daughter, who are alleged to have misstated the facts in regard to the plaintiff’s health prior to the accidént, both gave testimony not only relative .to that matter, but in reference to the circumstances of the accident itself. As a matter of course, upon the new trial, the defendant will ask the jury to discredit the testimony of these witnesses so far as it relates to the plaintiff’s previous freedom from illness. Furthermore, it will be not only natural but perfectly fair to argue that if they have indulged in untruth or exaggeration with reference to the plaintiff’s physical condition, they may also have indulged in untruth or exaggeration with reference to the facts relied upon to make out negligence on the part of the defendant and the absence of contributory negligence on the part of the plaintiff. It does not seem proper, therefore, to surround the new trial with limitations which shall prevent the defendant from availing itself of such a line of argument; and for this reason we think the prescribed condition should be-stricken from the order.

The order granting a new trial on the ground of newly-discovered evidence should, therefore, be modified by omitting the requirement of a stipulation by the defendant, and as thus modified should be affirmed.

In view of this disposition of the appeal from that order, the defendant’s appeal from the judgment and order denying a motion for a new trial on the minutes should be dismissed.

All concurred.

Appeal from- judgment and order denying motion for new trial on minutes dismissed, without costs. Order granting new trial on the ground of newly-discovered evidence modified by omitting tliefequirement of a stipulation by the defendant, and as thus modified affirmed, without costs.  