
    OAKLEY against SEARS.
    
      New York Superior Court ;
    
    
      General Term, May, 1863.
    New Trial.—Newly Discovered Evidence.—Cumulative Testimony.
    In an action against the drawer of a bank check, the defence being that it was given for the benefit of a third person, on an agreement that it was to be paid only out of funds to be provided by him, the plaintiff testified that before he took the check the defendant told him that he had security, and would pay the check, and that he (plaintiff) took it for value. The defendant testified that he never had any conversation with plaintiff before the latter received the cheek. After verdict for the plaintiff;— Held, that newly discovered evidence of declarations of the plaintiff that he knew before he took the check that it was made on the condition alleged by the defendant, was a good ground for granting a new trial.
    The circumstance that proof of such facts would tend to discredit the plaintiff, does not convert the evidence into mere impeaching evidence.
    Nor is such evidence to be deemed cumulative, but is direct and independent testimony.
    Appeal by tire plaintiff from an order made by Mr. Justice Barboto, in March, 1863, granting a new .trial.
    The action was tried February 3d, 1863, before Mr. Justice Barboto and a jury, and a verdict rendered for the plaintiff. A case was made by defendant, upon which, as well as upon affidavits, asking for a new trial upon the ground of newly discovered evidence, he moved at special term for a new trial. The motion was granted, and from the order granting the new trial, the defendant appealed.
    The action was brought by Thomas B. Oakley against William S. Sears, upon a. bank check drawn by the defendant to the order of the plaintiff; and the defence was that a previous check in renewal of which this one was given, was made at the request of one White, and delivered to him, payable to plaintiff’s order, with the understanding between the defendant and White that the check was not to be paid until White gave the defendant funds to meet it: that the check was given by the defendant to White for the purpose of enabling White to borrow money of the plaintiff; that the check in suit was given upon the same conditions, and upon the" surrender of the original check; and that White never gave any funds to the defendant to meet the check.
    The plaintiff,'being examined as a witness in Ms own behalf, testified that he paid twelve thousand dollars in money to WMte for the original check.
    The defendant, being examined as a witness in his own behalf, testified that the original check was given under the circumstances set up in his defence, and that some time after its date the plaintiff called upon him one day at his office, saying, “ The check—this first check, had not been paid ; said I, You know the arrangement, that you are not to have the money until White funds into whenever he it into my hands you shall have it. Said he, Do .you expect it soon ? I said, Hr. "White said it was coming soon, and whenever it comes you will get it.”
    The plaintiff, being recalled and examined on his own behalf, testified that prior to taking the original cheek from Mr. White, “ Mr. Sears held in his possession, I am stating that which Mr. Sears told me, guarantee for the payment of the check. Before I took the check from Mr. Seam I wanted to know whether the check was good, whether Mr. Sears had a valuable consideration for it. He stated that Mr. White was his client with a lawsuit pending in which a large amount of money had to be put up in court. He had collateral security with which he could pay by twenty-four hours’ notice, and he would; and I accepted the check upon these remarks from Mr. Sears, knowing he said he had security in his possession, and I held the original check, and notified him by letter and gave him the twenty-four hours’ notice that I required it paid. To extend the time to enable Mr. White to consummate his matters, or Mr. Sears, his lawyer, the second check was given. I had no conversation with him about the second check.”
    The plaintiff had a verdict. The substance of the newly discovered evidence, upon which the defendant moved, is stated in the opinion of Jhe court.
    
      George R. Thompson, for plaintiff, appellant.
    I. No error is claimed to have been made upon the trial, for the purposes of this appeal. It was error for the court at special term,- to grant a new trial on the case.
    H. The question then is whether the court below was right in granting a new trial on the ground of newly discovered evidence. It is insisted that no newly discovered evidence was revealed upon the motion sufficient to sustain the order. In respect to granting new trials on the ground of newly discovered testimony, the following principles are well settled, viz.:
    I. The testimony must have been discovered since the verdict.
    2. It must have been such as could not have been attained with reasonable diligence in the former trial.
    3. It must be material "to the issue.
    
      4. It must go to the merits of the case, and not to impeach the character of a former witness
    
      5. It must not be cumulative (People v. Superior Court, 10 Wend., 285 ; Porter v. Talcott, 1 Cow., 359).
    
      (a.) The order granting the new trial in this case violates several of these rules.
    
      (b.) The evidence could have been attained at the trial by defendant with reasonable diligence. The case ought to be free from laches (Williams v. Baldwin, 18 Johns., 489 ; Hollingsworth v. Napier, 3 Cai., 182 ; Kendrick v. Delafield, 2 Id., 67; People v. Marks, 10 How., 612; Leavy v. Roberts, 8 Abb., 310).
    (c) The evidence, if obtained, is not material to the issue, and would not have been admitted on trial. The check is dated October 25th, 1860, and is payable October 20th, 1860. The statement alleged to have been made by plaintiff to Parsons was not made until November, and merely shows that plaintiff knew at that time how Sears came to give the check. There is not a particle of evidence that he knew anything about it when he parted with his money on the strength of the check,— what he discovered afterwards amounts to nothing.
    
      (d) The proposed, evidence, if admitted, would tend to impeach the plaintiff. Oakley swears he never knew of any such arrangement as that testified to by Sears. The proposed evidence directly contradicts that statement. When the action is between the original parties a new trial will not be granted to admit proof of admissions of a plaintiff as newly discovered evidence (Guyot v. Butts, 4 Wend., 579).. As to what is impeaching evidence, see Brown v. Hoyt, 3 Johns., 255; Shumway v. Fowler, 4 Id., 425; Harrington v. Bigelow, 2 Den., 109; Meakim v. Anderson, 11 Barb., 215; Beach v. Tooker, 10 How. Pr., 297. The proposed evidence establishes no new fact. It merely goes to disprove, if evidence "at all, what has already been sworn to by Oakley. A new trial will not be granted by means of the discovery of such evidence (Halsey v. Watson, 1 Cai., 24; S. C., Col. & Cai. Cas., 160). The evidence discovered is cumulative. If newly discovered evidence relates to any fact proved or controverted, whether bearing upon the issue directly or collaterally, it is cumulative (Leavy v. Roberts, 8 Abb. Pr., 310; Brisbane v. Adams, 1 Sand., 195.) The evidence is to a point testified to by Sears, and denied by Oakley. It is strictly cumulative, because it goes to show the same fact exactly (See Adams v. Bush, 23 How. Pr., 262.)
    
      
      L. S. Chatfield, for the defendant, respondent.
    I. What is cumulative evidence is riot very well settled, but the leading dis emotion is that it must not be of the same hind, to establish the same fact, as in 4 Wend., 579, where the new evidence is direct, ■ and the former was circumstantial, to prove the same fact (Graham's Pr., 630.)
    Such evidence is not of the same kind or character. One is direct, the other is circumstantial (Seeley v. Chittenden, 4 How. Pr., 265 ; 10 Wend., 285 ; Porter v. Talcott, 1 Cow., 381 Simmons v. Fay, 1 E. D. Smith, 107; Sargent v. ___, 5 Cow., 106; 10 Barb., 307; Guyot v. Butts, 4 Wend., 579; Platt v. Munroe, 34 Barb., 279.)
    II. When parties are the only witnesses, if evidence other than that of the parties can be obtained, it is certainly desirable .that it should be obtained, and this remedy should be most liberally applied.
    HI. The gravamen of these motions is the furtherance of justice, and to ascertain the real truth. It is purely a discretionary motion, governed so far as it may be, by precedents (Platt v. Munroe, 34 Barb., 279), and it is submitted that when a. new trial is granted, the order granting is not an appealable order.. (10 Barb., 303.)
   By the Court.—Bosworth, Ch. J.

The plaintiff and defendant were the only witnesses, as to the interview between themselves, and what was then said between them; or as the interviews between them and Mr. White, when the three were together. Their testimony is in direct conflict throughout. The suit is upon a check made by the defendant. The judge charged that, “if Mr. Sears is to be believed, it (the check) was delivered to White to be used in a certain manner, and for a, certain purpose. It was delivered with the understanding that it was.not to be paid by Mr. Sears, the maker of it, except nut of the funds which should come into Ms hands, belonging to White. If you believe that statement of Mr. Sears, the defendant is entitled to your verdict.” I

Assuming that instruction to be correct, as perhaps we must for the purposes of this appeal (Tappan v. Butler, 7 Bosw., 487; Bunten v. The Orient Mut. Ins. Co., 4 Bosw., 255), but without' expressing any opinion as to its accuracy, it is quite clear on this assumption that the newly-discovered, evidence is material. Evidence of the plaintiff’s declarations that he knew when he received the check, that it was a loaned check, without any consideration being paid to the said Sears for it,” would naturally lead the jury to believe Mr. Sears’ statement as to the origin of the check, and the use it was to serve; as his testimony was in no way impaired, except by the contradiction by the plaintiff, in testifying what took place between him and Mr. Sears before the original check was accepted by the plaintiff. The defendant explicitly denied that he knew or conversed with the plaintiff before he received the original check. But for the testimony given by the plaintiff, as to an interview between himself and the defendant before the plaintiff received the original check,— to the effect that Sears told him he had collateral security with which he could pay by twenty-four hours’ notice, and he would,”— the defendant, under the charge made, for aught we can perceive, should have had a verdict in his favor.

Proof, by the testimony of these persons, that the plaintiff knew, or had notice when he took the original check, that it was made on that consideration, and as a memorandum check and not to be paid or demanded until White put Sears in funds to pay with, would be proof of facts, which with Sears’ testi mony as to the origin of the check, if unimpeached, would entitle him to a verdict. The circumstance that proof of such facts would tend to discredit the plaintiff, does not convert the evidence into mere impeaching evidence. It is nevertheless, as truly, direct and pertinent evidence to the merits, as if the plaintiff had not testified to any conversation between himself and Sears before taking the original check. ■ '

Declarations of the plaintiff that he knew the check was so made and was to be so used, is competent evidence'to establish the same facts, and is none the less evidence in chief, because it may also tend to impeach.

It is not cumulative merély. The defendant did not offer any evidence, nor testify himself, either as to any declarations of the plaintiff to Parsons on the subject, nor as to any notice to or knowledge of the plaintiff, at the time he took the original check, as to its origin and the use to be made of it, except in so far as the alleged conversation, prior to giving the secured check, would tend to show he had such knowledge. The plaintiff denies that any such conversation took place.,.

The newly discovered evidence is direct and independent testimony tending to show notice to the plaintiff of facts, which if communicated and existing, might prevent his recovering ; it is not to a point, upon which any testimony was directly given or offered by the defendant at the trial. If his testimony has any claims to fairness, it is to a matter which he had no right to expect would be material. Row if the check was made as he swears it was, and was transferred as collateral to a precedent debt, there could be no recovery.

And if it be true, as the plaintiff swears, that he paid twelve thousand dollars cash for the check, he will of course recover if he took it in good faith, and without notice that it was fraudulently diverted from the purpose for which it was made. But if he had the notice which Parsons’ affidavit tends to show he had, he may not be able to recover.

What Mr. Parsons’ testimony may be we can only infer from his affidavit: we understand it to import the making of a declaration to him, by the plaintiff, that he knew, when he took the original check,' what he represents the plaintiff to have stated that he knew.

Simons v. Hay (1 E. D. Smith, 107), and the cases there cited, show that the newly discovered evidence, cannot be regarded as merely cumulative, or impeaching testimony.

The order should be affirmed. 
      
      Present, Bosworth, Ch. J., and Moncrief, and White, JJ.
     