
    FREDERICK MICHEL, et al., Appellants v. JAMES B. COLEGROVE, Respondent.
    
      Motion to vacate a judgment and to suppress the deposition of a witness taken by commission made upon a case and exceptions and affidavits.
    
    This is the ease reported ante, page 278, the motion being renewed on a case and exceptions, as well as affidavits, at the special term, as suggested in the decision of the former motion.
    
      Held, that the action of defendant in regard to the execution of the commission, taking the testimony of one Battelson in the case, indicates a disregard of the proprieties that all honorable men observe in the conduct of any litigation, however bitter, and is a trespass upon the code of ethics, which should control under such circumstances, and calls for severe condemnation by this court. The conduct of the defendant in this respect is inexcusable. But from a careful examination of all the evidence it does not appear that such action was a wrong from which defendant derived any benefit, and, therefore, his conduct does not afford sufficient ground or reason to entitle the motion to prevail.
    
      Held, that the plaintiffs are estopped from the relief sought, by reason of their negligence and laches. The testimony of the witness was not controlling, it was only cumulative, and there is enough in the case, without the testimony of this witness, to sustain the judgment. A new trial cannot be obtained either for the purpose of furnishing new and additional cumulative evidence, nor for the purpose of destroying the cumulative evidence of the successful party. This rule is well settled, that if a witness examined on commission is instructed by the party in interest how to testify, the commission will be suppressed at the instance of the adverse party, on the ground that such conduct is xuejudicial to him, corrupting to the witness, an abuse of process and a fraud on the court, interfering with pure administration of justice. But suppressing a commission in advance of the trial and granting a new trial after judgment, are quite different things. A judgment is intended to terminate a litigation and to conclude the parties as to every question raised or which might have been raised before the final result was reached, and rights so lost may never be regained.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
    
      Decided July 5, 1892.
    
      Appeal from an order of the special term, denying plaintiffs’ motion to set aside a judgment of the special term and to suppress the deposition of a witness, which order hears date March 24, 1892.
    
      Henry Daily, Jr., attorney for appellants.
    
      Thornall, Squires & Pierce, attorneys, and Franklin Pierce of counsel, for respondent.
   By the Court.—Gildersleeve, J.

This is an appeal from an order of the special term, by Judge McAdam, dated March 24, 1892, denying plaintiffs’ motion to suppress the deposition of one George Battelson, taken under a commission, and to set aside a judgment of the special term, entered herein, and for a new trial. This motion was made upon a case and exceptions, and upon affidavits setting forth the fact that since the entry of the judgment herein plaintiffs had learned that defendant, who had caused the testimony of one Battelson to he taken by a commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness. In an affidavit, one' of the plaintiffs stated that said Battelson informed him, when in London, subsequent to the trial herein, that before the execution of said commission he, said Battelson, received said letter from defendant, and answered the interrogatories as directed by defendant. The defendant, in his affidavit, used in opposition to the motion, admits the writing of the letter to Battelson, hut disclaims any intention to direct Battelson in the answers he was to make to the interrogatories, or in any way to influence him. He further says, by way of explanation, that he had personal knowledge of all the facts stated in his letter, and that he also knew that Battelson knew the same facts ; and he positively swears that each and every one of the answers of Battelson to the interrogatories in question was true; and that the occasion of writing the letter arose from a letter written to him by Battelson, in which Battelson set forth the facts as to which he subsequently testified, under the commission, and asked him, defendant, to suggest the form of answers to be used by him, said Battelson; and that said letter was written by defendant without any consciousness, at the time, that it was improper or indelicate for him to suggest the forms of the answers, and without any intent whatever of, in any way, influencing the evidence of said Battelson.

This letter of the defendant certainly indicates a disregard of the proprieties that all honorable men observe in the conduct of any litigation, however bitter, and is a trespass upon the code of ethics, which should control under such circumstances, that calls for severe condemnation by this court. In re Eldridge, 82 N. Y., 161; Butler v. Flanders, 44 N. Y. Super. Ct. R., 531; Graham v. Carlton, 9 N. Y. Supp., 392. We deem the conduct of the defendant in this respect inexcusable. But, from a careful examination of all the evidence, we are not satisfied that it was' a wrong from which the defendant derived any benefit. This conduct of the defendant, therefore, does not afford sufficient reason to entitle the motion to prevail.

The plaintiffs knew two years before the trial that a commission had been issued for the examination of Battelson, and they knew what answers he had made to the several interrogatories. Yet no motion was made to suppress. The excuse is that the facts were not known until after the trial; but could they not, by the exercise of proper diligence, have been ‘ discovered before ? It is reasonable to suppose they could have been; and, therefore, the plaintiffs are estopped from the relief sought, by reason of their negligence and laches. Bay- lies’ New Trials and Appeals, pp. 524, 525, and cases there collected; Quinn v. Lloyd, 31 N. Y. Super. Ct., 255; Smith v. Nelson, 62 N. Y., 288. If the least fault be imputable to the plaintiffs, they will ask for relief in vain. 3 Graham & Watterman, 1026; Weston v. N. Y. El. Ry. Co., 42 N. Y. Super Ct., 162.

Again, the testimony was not controlling, but cumulative ; and there is enough in the ease, without the testimony of said Battelson, to sustain the judgment rendered. There is no reason to believe that Battelson would testify differently, if re-examined; nor is there any reasonable certainty that a new trial would produce a different result.

The disclosures made by the evidence, upon which the plaintiffs rested their motion, would be of no value upon a new trial, except by way of affecting the credibility of Colegrove, and Battelson. A judgment will not be vacated for the purpose of allowing the defeated party to attack the credibility of the witnesses of the successful party, or to contradict them, or to show that they have testified falsely. Smith v. Lowrey, 1 Johns., Ch., 320; McIntire v. Young, 39 Am. Dec., 447; Starin v. Kelly, 47 N. Y. Super. Ct., 291; Emmerich v. Hefferan, 53 Ib., 98. The plaintiffs now seek to destroy the judgment by removing or destroying the cumulative, corroborative evidence in Battelson’s deposition. But a new trial cannot be obtained either for the purpose of furnishing new cumulative evidence, or for the purpose of destroying the cumulative evidence, of the successful party. See Baylies’ New Trials and Appeals, 525, and cases there collected.

We quote, with entire approval, from the decision of Judge Me Adam, in disposing of this motion : This rule is settled that if a witness examined on commission is instructed by the party in interest how to testify, the * commission will be suppressed, at the instance of the adverse party, on the ground that such conduct is prejudicial to him, corrupting to the witness, an abuse of process, and a fraud on the court, interfering with pure administration of justice. But suppressing a commission, in advance of the trial, and granting a new trial after an adverse judgment, is quite a different thing. A judgment is intended to terminate a litigation and to conclude the parties as to every question raised or which might have been raised before the final result was reached, and rights so lost may never he regained.”

For the reasons above stated, it follows that the order appealed from must be affirmed, with ten dollars costs, and disbursements.

Freedman, P. J., and Dugro, J., concurred..  