
    GARNO v. BURGARD.
    (Supreme Court, Appellate Division, Fourth Department.
    December 10, 1915.)
    New Tbial <@=>161—Gbotjnds—Payment of Costs.
    Defendant, who was entitled to a new trial because a witness confessed to giving false testimony on the trial, should not be compelled to pay-costs as a prerequisite to a new trial, since he could not, by any diligence, have discovered the true evidence, and the court owes the duty to the public of purging its records of fraud, without penalizing the innocent party.
    [Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. <@=>161.]
    Robson, J., dissenting.
    <g^>!Tor other cases see same topic & KEY-NUMBER in. all Key-Numbered Digests & Indexes
    Appeal from Special Term, Oswego County.
    Action by Louis Garno against Henry P. Burgard. From an order-denying defendant’s motion for new trial, he appeals. Reversed, and new trial ordered.
    See, also, 165 App. Div. 948, 150 N. Y. Supp. 1087.
    Argued before ICRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
    Edward C. Schlenker, of Buffalo, for appellant.
    J. T. McCaffrey, of Oswego, for respondent.
   LAMBERT, J.

The motion for a new trial in this case in its essential characteristics is not founded on newly discovered evidence. The impugning circumstances arose out of the confession of the witness ICillen that he had given false (material) evidence on the trial of the action, and hence diligence in any degree would not have disclosed the groundwork of this motion before trial. The verdict and the judgment rest in fraud, perpetrated without the possible knowledge of the defendant. The court was imposed upon, as well as the defendant. It would therefore be a mockery of justice to require the payment of costs of a trial pregnated with confessed false evidence as a condition of granting to the injured and faultless party a new trial. The court owes a duty to- the public weal to purge its records of fraud, and it should do so without penalizing an unoffending party. The perjury committed and confessed was not due to fault or mistake of the defendant, and hence, within the reason of the rule in Waltz v. U. & M. V. R. Co., 116 App. Div. 563, 101 N. Y. Supp. 968, .the new trial here given should he reversed, with costs of this appeal to the defendant to- abide the event of the action.

Order denying motion for new trial on the round of newly discovered evidence reversed, and motion granted, with costs to appellant to abide event. Judgment and order denying motion for new trial on the minutes of the court vacated and set aside. All concur, except ROBSON, J., who dissents.  