
    Parris Cassab, Respondent, v. J. Ledlie Hess, as Trustee of the Fonda, Johnstown and Gloversville Railroad Company, Appellant.
   The motion is based on the combination question of plaintiff’s earnings and whether or not the plaintiff was on relief. The plaintiff acknowledged at the time of the trial that he was on relief but he would not swear that he had been on relief before 1938. It is evident from the cross-examination of the plaintiff upon the trial that the defendant knew all about the plaintiff at the time of the trial, where he had worked and what had been the course of his life. That is clearly shown by the cross-examination conducted on behalf of the defendant. In the papers upon the motion for a new trial the plaintiff told about being employed by Mike Hawa and the location of his store and that he worked on a salary and commission, sometimes fifteen dollars and sometimes more. There is nothing in the papers for a new trial upon the ground of newly-discovered evidence that convinces the court that, with due diligence, the facts could not have been found out before hand. There is nothing to warrant the court in finding, if a new trial was granted, that the result would be different or that the new evidence would in any way change the result. Order is affirmed, with ten dollars costs and disbursements. Crapser, Heffernan, Schenck and Poster, JJ., concur; Hill, P. J., dissents.  