
    Joshua F. Page, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    New trial — Will not be granted for incorrect statement bv counsel,
    A new trial should not necessarily be granted because of an incorrect statement by the plaintiff’s attorney as to what the plaintiff had testified to.
    Appeal from order denying motion for new trial on the ground of surprise and newly discovered evidence.
    
      T. P. Wickes, for app’lt; I. S. Catlin, for resp’t
   Van Brunt, P. J.

An examination of the record in this case does not lead us to any different result from that which was arrived at by the special term. The newly discovered evidence, because of which a new trial is sought, is not of that character which enables the court to say that its introduction would probably lead to a different result; and the only circumstance disclosed by the record which has caused any hesitation in coming to the conclusion that the order should be affirmed is the statement contained in the record by the plaintiff’s counsel during the progress of the trial that the plaintiff had already stated that he was perfectly sound and healthy before his fall and injury, and that he had received none other.

If this was to be deemed as a stipulation upon the part of. counsel of a fact, then clearly it was not entirely true. But it does not appear that it was intended to be of that character, but a mere statement on the part of counsel of what the plaintiff had previously testified to, and which was not in fact a correct statement of any testimony which he had given. We do not think that, although this statement may have been incorrect, a new trial should necessarily be granted for that reason.

The newly discovered evidence does not seem to be of that gravity which would justify the court in vacating the judgment which has already been obtained. It may possibly have some effect upon a new trial; but there is not that certainty as to its effect which is necessary -to be seen in order to give the defendant the right to a new trial of the issues involved.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.  