
    GREENSPAN, Respondent, v. JOFFE, Appellant.
    (Supreme Court, Appellate Term.
    March 24, 1904.)
    Action by Abraham Greenspan against David Joffe. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
    A. B. Greenberg, for appellant.
    J. Rieger, for respondent.
   FREEDMAN, P. J.

Plaintiff brought this action, claiming to be the lessee of certain premises which he sublet to the firm of Singer & Sherman. These subtenants used the premises for the ¿nanufaeture of cigarettes. Upon the dissolution of their partnership they sold some of their machinery to this defendant. The plaintiff alleges that the defendant, in removing the machinery so purchased, damaged the premises by breaking the ceilings, etc., which by the terms of plaintiff’s lease the plaintiff was bound to repair. Plaintiff was the only witness who testified that the alleged damages were done by the defendant. The defendant and two other witnesses testified that the defendant did not damage, but that the machinery purchased by him was all taken apart by his grantors, and that he found such machinery lying on the floor ready to be removed, which he did without doing any damage. There was a sharp conflict of testimony. After the court rendered a judgment in favor of the plaintiff, the defendant moved for a new trial upon the ground of newly discovered evidence. This appeal is from the judgment, and also from the order denying a new trial. The testimony set forth in the affidavits used upon the motion for a new trial is clearly material upon the issues in the case, and we think the interests of justice would be best subserved by granting a new trial. Judgment reversed. New trial ordered, with costs to appellant to abide the event. All concur.  