
    Joseph W. Lynch, Respondent, v. Rudolph T. McCabe and Andrew McKinney, Appellants.
    First Department,
    June 5, 1908.
    Practice — new trial — newly-discovered evidence.
    A new trial will not he granted on the ground of newly-discovered evidence where, in order for plaintiff to recover, he must show that one defendant was an associate of the other at the time of signing of a contract and was a party to the contract, and the new evidence is an unanswered telegram of inquiry from the second defendant to the first dated two weeks after the contract.
    Nor can a judgment in favor of the second defendant be opened on such evidence, since it does not affect his liability to plaintiff.
    
      Appeal by the defendants, Rudolph T. McCabe and another, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 9th day of March, 1908.
    
      Benjamin N. Cardozo of counsel [Simpson, Werner & Cardozo, attorneys], for the appellant McKinney.
    
      John H. Hazelton of counsel [Hazelton & Hazelton, attorneys], for the appellant McCabe.
    
      Charles E. Kelley of counsel [Randall H. Stern, attorney], for the respondent.
   Clarke, J.:

This is an appeal from an order granting plaintiff’s motion for a new trial upon the ground of newly-discovered evidence. The action was brought to recover $230,000 upon a claim that the plaintiff agreed to sell and deliver to the defendants the Great Eastern Railroad Company of Rorth Carolina, its entire capital stock, its right of way, and other property which defendants agreed to pay for on or before September 18, 1902, thereafter extended to September thirtieth; that the plaintiff duly tendered performance, but the defendants refused to carry out the contract as agreed upon.

At the close of the plaintiff’s case the complaint was dismissed, judgment thereon was duly entered, and the time to appeal therefrom has expired. The paper sued on, alleged to have been a contract, is signed “ R. T. McCabe, for self and associates.” The effort of the plaintiff upon the trial was to establish that defendant McKinney was the associate alluded to and a party to the contract. In this he.wholly failed. The plaintiff first met the defendant McCabe on August 19,1902, and the paper alluded to was executed on that day.

The'plaintiff testified that he first met the defendant McKinney about the middle of September. He thought it was some time before the nineteenth, about the fifteenth or sixteenth. Plaintiff called McCabe as a witness, who testified that McKinney had never been associated with him in any enterprise prior to August 19,1902. Q. “ Was tlie defendant Andrew McKinney connected with you in any way in this enterprise, by which I mean the enterprise indicated in plaintiff’s exhibits 7 and 8 ? * * * A. lie was never connected in any way with me. * * * I mean to say this, that as to associate, when I signed that document, I had no associate, and never had until the whole thing — the whole scheme was put forth. * * * I never went to Mr. McKinney for a month after that was signed, or two months. lie was away.” Under cross-examination McCabe testified that McKinney never authorized him to execute Exhibits 6 or 7 or 8. “ lie never knew I had it until weeks afterwards; ” that he had never told McKinney that he had signed either of those papers and had never shown him a copy of them; that McKinney had never stated that he would pay any part of the money for the Great Eastern railroad; that Lynch spoke about a meeting in September, which never took place, and Mr: McKinney was not-there ; that Lynch never saw McKinney until Hovember; that in September, 1902, his recollection was that McKinney was in the hospital in Canada with typhoid fever. On redirect examination McCabe testified that he did not tell McKinney that he had any option or call upon the control of any such road.

Plaintiff called the defendant McKinney, who testified that he was taken sick on the thirty-first of May at the yacht club, then went to a hospital in Hew York; that on his doctor’s advice he went to Canada about the middle of June and was taken down with tyjffioid fever at Lake St. John and was sick up there all summer. Hospital bills were produced from July thirtieth to September seventh. McKinney further testified that he never had any correspondence with McCabe during June, July and August about any business; that he was away at this time with typhoid fever and could not have written letters.

The alleged newly-discovered evidence grew out of the fact that after the trial the defendant McKinney permitted the plaintiff to search through the books and papers of his old firm, which had been dissolved, in a storage warehouse in Brooklyn, and there found a telegram dated Hew York, September second, to Andrew McKinney, care of Jeffery’s State Hospital, Quebec. It will be remembered that the alleged contract is dated August nineteenth. This telegram read : Have been over Southern Railroad, also projected line. It is better than represented and one of the best propositions I know of. Other parties trying to get it. Shall I hold it for you ? Important you advise me immediately. Answer. E. T. McCabe.” McCabe averred in an affidavit filed in opposition to the motion that he received no reply to said telegram and that he went to see other parties, as already testified to by him, and that he did not see defendant McKinney in this regard until after he had come back to Hew York city after he had recovered. Said telegram could not be received in evidence against McKinney upon the issue tendered. An unanswered telegram of inquiry sent to a sick man two weeks after the making of the alleged contract does not establish the fact alleged and relied upon by the plaintiff that on August nineteenth McKinney was an associate of McCabe in the enterprise under consideration and that McCabe signed the paper of that date with his knowledge, consent and authority. This alleged evidence being for the sole purpose of showing that McKinney was the associate of McCabe, and being incompetent and inadmissible for that purpose, of course it would not affect the cause of action against McCabe. Whether the dismissal of the complaint against McCabe was proper or not is not an open question. It is fixed by the judgment unappealed from and unreversed. That judgment cannot be opened on alleged newly-discovered evidence not affecting McCabe’s responsibility to the plaintiff, but only claimed to connect McKinney with McCabe.

The order appealed from should be reversed, with ten dollars costs and disbursements to the appellants, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  