
    George Sachs, Appellant, v. Hans Gasdorf, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1914.)
    Evidence — what may be considered newly discovered — when new trial , denied.
    Where newly discovered evidence is purely cumulative and the expectation of a different result on a new trial hangs on a presumption that the jury might give credence to the testimony of eight witnesses which the first jury refused to give to the testimony of four witnesses, a motion for a new trial on the • ground of newly discovered evidence will be denied.
    The testimony of persons who were present at the time plaintiff was employed to sell defendant’s business cannot be considered as newly discovered evidence.
    Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of the Bronx, first district, vacating and setting aside a judgment rendered on the verdict of a jury in favor of the plaintiff.
    N. J. O’Connell, for appellant.
    Sol. Simmons, for respondent.
   Delany, J.

The plaintiff brought this action to recover commissions alleged to have been earned by him in bringing about the sale of defendant’s business to one Phelps and a verdict in his favor resulted. Subsequently the. defendant moved to set aside the judgment and an order was granted setting aside the same. The ground of the motion was newly discovered evidence and was supported by the affidavits of four persons which in effect recite the same state of facts as that given on the trial by the defendant, and three other witnesses. Such testimony is purely cumulative and the expectation of a different result on a new trial would only hang on the presumption that another jury might give credence to eight which the former jury evidently refused to give to four witnesses. Such a presumption is without any logical support and is insufficient to justify a new trial. The plaintiff had but his own and Phelps’ testimony to sustain his case so that the difference in the number of witnesses could not have affected the defendant prejudicially. Nor is the evidence proposed newly discovered in the proper sense. The accidental finding of a card in his pocket after the trial he claims furnished him with the name of a witness whose discovery led to others. The ques ■ tion to which this evidence applies is whether the plaintiff was to look to the buyer for his commissions — defendant claiming that he reduced the price from $7,500 to $7,000 on such an understanding among the three. But this was denied by the plaintiff and Phelps. The persons who were present at the time of these negotiations and might have been expected to have heard the conversation conld hardly be supposed to furnish newly-discovered evidence. While the fact that the evidence was cumulative would not in every case be a ground for denying a motion for a new trial, yet where evidence is cumulative and already given by a goodly number of witnesses some impelling facts must be shown to make it probable that the interest of justice requires a new trial. Defendant had his day in court as well as the plaintiff and had witnesses on the point in question double the number of the plaintiff. The jury determined the fact on the evidence and no such situation in our opinion is shown to justify the disturbance of its finding.

Seabuby and G-uy, JJ., concur.

Order reversed with costs and judgment reinstated,  