
    (69 Hun, 109.)
    HELMKE v. STETLER.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    New Trial—Nbwly-Discovebed Evidence.
    A new trial should not he granted for newly-discovered evidence, where the case has already been twice tried, and it is not clear that such evidence would produce a different result.
    Appeal from special term, Rockland county.
    Action by Frederick W. Helmke against Henry I. Stetler. Judgment for plaintiff, after which defendant moved for a new trial because of newly-discovered evidence. The motion was denied. Defendant therefore appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Abram A. Demarest, for appellant.
    C. P. Hoffman, for respondent.
   DYKMAN, J.

This is an appeal from an order denying a motion for a new trial upon newly-discovered evidence. The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant. The plaintiff was in the' employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal. The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action. The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result. It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer, and now he makes an affidavit that the horse did kick him, but that it was a slight kick, and he attributes it to his carelessness. TTis testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men, and fight with other horses. The other affidavits are in many respects suspicious, and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with $10 costs and disbursements. All concur.  