
    Eugene Smith, as Executor, etc., of Richard Patrick, Deceased, Respondent, v. Fredericka Rentz, Appellant.
    
      Neto trial — surprise — newly discovered evidence.
    
    A new trial is not to be granted on tbe ground of surprise, where it appears that the moving party was, at the trial, in possession of facts which he could then have presented, but did not because he thought the evidence introduced was sufficient to entitle him to prevail; and it appears that he was not misled by the opposite side, and that the surprise was occasioned rather by the ■decision of the action than by anything in the proceedings of the trial.
    
      A new trial will not be granted on the ground of newly discovered evidence, where the testimony, upon which the motion is based, with reasonable care could have been obtained and presented at the trial.
    Appeal by tbe defendant, Fredericka Rentz, from an order of tbe Supreme Court, made at tbe New York Special Term on tbe 3d day of April, 1893, upon tbe motion of tbe plaintiff, and entered in tbe office of tbe clerk of tbe city and county of New York, granting a new trial, and also from a judgment in favor of tbe plaintiff, entered in tbe said clerk’s office on tbe lOtb day of May, 1893, upon tbe second report of tbe referee.
    
      Leopold Leo, for tbe appellant.
    
      R. B. Olosson, for tbe respondent.
   Parker, J.:

Tbe action was for money paid by the plaintiff’s testator to tbe defendant’s use. Tbe complaint alleged that Mr. Patrick bad been for a number of years prior to bis death tbe banker and general business agent of the defendant; that during this time she deposited moneys with him, and be, at her request, paid moneys to her and for her account, particularly her tax bills, bills of tradesmen and others incurred in tbe maintenance of her household; and that when be died tbe total of tbe sums thus expended exceeded the sums received from her by $3,'114.15. Tbe answer put in issue tbe averments of tbe complaint.

Tbe action was first tried before a referee, whose finding in favor of tbe plaintiff was mainly based on tbe statement of account appearing in tbe ledgers of plaintiff’s testator. Tbe judgment was subsequently reversed by the Court of Appeals on the ground that tbe admission of testator’s books in evidence was error (131 N. Y. 169). A new trial was bad before another referee, who disallowed certain items claimed by tbe plaintiff, aggregating about $1,100. In his opinion be assigned tbe following reason for bis determination in such respect: The only witness who testifies in support of them is John H. Patrick, and it is plain that he does not speak from personal knowledge, but that his testimony rests upon entries in tbe decedent’s books, which are not in evidence.”

If tbe referee was in error, plaintiff had an adequate remedy by appeal. Instead, be moved at Special Term for an order sefting aside tlie report of tlie referee and for a new trial. Tlie attorney for the moving party íd his affidavit, on which in part his motion was based, made the following statement: “ Upon receiving the referee’s report and opinion I was utterly dumbfounded to find that though finding in my favor on every other issue submitted to him, he had disallowed some $1,100 of taxes on the defendant’s property paid by the testator, on the following grounds as stated in his opinion: ”

(Here affiant quotes from the opinion of the referee as we have above, and continues.)

“ I had known from Mr. John H. Patrick, ever since the - commencement of the action in 1888, that he had in point of fact had personal knowledge of these payments, for the simple reason that in most cases he himself had drawn the check that paid them, and in every case had made the payment himself, either taking the check to the office himself, or himself sending it there by mail or messenger ; and I knew that he had used, and needed to use, the memoranda made by himself at the time only to refresh his recollection after the lapse of eight or ten years as to the precise figures of the payments ; whether a given check was for $210 or $211, for instance.”

The general rule is that parties to legal proceedings are required to use attention and diligence in the proper preparation of their causes for trial; and if either fails to do that, and consequently is defeated in whole or in part, when he might otherwise have' succeeded, the fault is his own, for which the courts can ordinarily supply no remedy. An exception to tl¿.e rule is where the conduct of the opposing counsel is such as to mislead counsel. Illustrations of the exception may be found in Chamberlain v. Lindsay (1 Hun, 231) and Continental Bank v. Adams (4 id. 666).

In each of the foregoing cases, in response to inquiry by counsel, his opponent made such answers as Avould naturally have deceived the inquirer. That was not the case here. Plaintiff made no inquiries of tlie defendant touching the items which the referee found he failed to establish by evidence. And defendant did not suggest that the proof was sufficient, or that the items were not to be seriously contested. Nor does plaintiff show that defendant did any act that was prejudicial to him. On the contrary, it distinctly appears from his affidavits that he was in possession of the facts which he could have proved and did not, probably because he thought the evidence introduced was sufficient to entitle the plaintiff to recover the items. The situation presented is one to which a remark in Foster v. Easton (19 N. Y. St. Repr. 447) is applicable: “If there was any surprise in the case, it would seem to have been occasioned rather by the final decision than by anything in the proceedings on the trial.”

Plaintiff was not entitled to a new trial on the ground of newly discovered evidence. According to the affidavit of his counsel it appears that he knew before the trial that his witness had personal knowledge of the facts, which led him to move for a new trial in older that he might prove them. The additional claim was made that certain checks of testator bearing on the subject had been discussed. But he does not say that he made any effort to find them before the trial, or that he could not readily have found them had he deemed it of importance to put them in evidence. They were in his client’s possession all the time, and the mere statement that they were discovered after the trial was not sufficient to grant the plaintiff a new trial. The inference fairly deducible from this statement, considered in connection with the rest of the affidavit, is that the real discovery made after the trial was that the checks were important as evidence.

It is the rule that a new trial will not be granted on the ground of newly discovered evidence where the testimony upon which the motion is based with reasonable care could have been obtained and presented at the trial. (Dillingham v. Flack, 43 N. Y. St. Repr. 806-808.) The rule is a wholesome one and should be observed. Not to do so is to encourage careless preparation for, and unskillful presentation on the trial, resulting in useless annoyance and additional expense to both suitors.

As the order was improperly granted, the judgment resulting from the new trial was unauthorized.

The judgment should be reversed, with costs. The order appealed from should be reversed, with ten dollars costs, and the motion for a new trial denied, with ten dollars costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed, with costs. Order reversed, with ten- dollars costs, and the motion for a new trial denied, with ten dollars costs.  