
    Morris Kanter, Respondent, v. Kallman Kanter, Appellant. Kallman Kanter, Appellant, v. Morris Kanter, Respondent, Impleaded with Gussie Kanter, Defendant. Kallman Kanter, Plaintiff, v. Morris Kanter and Gussie Kanter, Defendants. Morris Kanter, Respondent, v. Kallman Kanter, Appellant.
    (Consolidated Action —
    Appeal No. 1.)
    (Appeal No. 2.)
    First Department,
    May 1, 1936.
    
      
      I. Maurice Wormser of counsel [Charles Fredericks with him on the brief], for the appellant.
    
      Harold L. Herzstein, for the respondent.
   Per Curiam.

The motion for a new trial should have been granted. The newly-discovered evidence consists of testimony of the respondent given in proceedings supplementary to execution ■under another judgment previous to the institution of the present action. In those proceedings the respondent testified that his employment by the appellant was at seventy-five dollars per week, that he had no interest in the appellant’s business and no interest or prospect of pecuniary advantage under any contract. That testimony is in irreconcilable conflict with the respondent’s present claim for twenty-five per cent of the profits of the appellant's business. In determining the contested issues the jury is entitled to know that in his previous testimony the respondent persistently denied any interest in the appellant’s business (Arnheim v. Bowser, 244 App. Div. 565) even though the entry of judgment in the present action made it necessary for him subsequently to modify that testimony.

The judgment and orders should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ.

Judgment and orders unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.  