
    RAPHAELSKY against LYNCH.
    
      New York Superior Court;
    
    
      General Term, December, 1871.
    Granting New Trial on Newly Discovered Evidence aeter Judgment.
    Evidence of a conspiracy between plaintiff and' his witnesses, to falsely date instruments material to the case, in order to sustain the action; —Held, not cumulative, and a good ground for granting a new trial, when applied for immediately upon its discovery.
    The court has power under the act of 1833 (Laws of 1833, ch. 13, § 1), to grant a new trial on motion even after judgment.*
    * To the- same effect, beside the cases cited in the opinion, is, Blydenburgh v. Johnson, 9 Abb. Pr. N. S., 459.
    
      Morris Raphaelsky sued James Lynch, in the New York superior court, for the conversion of certain cases of tobacco, which the defendant, as sheriff of New York county, had, on January 7, 1864, seized under an attachment against William Salamon.
    " The tobacco at the time of the seizure was in store, and a warehouse receipt therefor had been made to James Parker. At the time of the trial the receipt bore the following indorsements : c< James Parker to J. Cooper,” “John Cooper,” “Philip Franklin.” Plaintiff claimed to have purchased the tobacco from Franklin, and received the receipt from him. On the trial Parker swore the tobacco belonged to Salamon for whom he acted, that Cooper was his (Parker’s) clerk and sold the tobacco for him. Franklin swore that he bought the tobacco from Cooper, and sold it to plaintiff by indorsing and transferring the warehouse receipt. A bill of sale from Franklin to plaintiff, dated January 4, 1864, was produced and put in evidence. Plaintiff had a verdict, on which judgment was entered. After the entry of judgment, defendant, claiming to have discovered evidence showing that the bill of sale had been falsely dated in pursuance of a conspiracy between plaintiff and the witnesses, gave notice of motion for a- new trial. Pending the hearing of this motion, defendant obtained an order from Spencer, J., opening and setting aside the judgment so far as to allow defendant to make the motion for a new trial. The motion for new trial was denied on the ground that it was made too late after judgment had been entered. Defendant appealed to the court at general term..
    
      A. J. Vanderpoel, for defendant, appellant.
    I. The practice adopted by the defendant in applying to have the judgment opened, and for leave to make the motion for a new trial, was authorized by and was in accordance with the decision of this court in the case of Stilwell v. Staples (4 Robt., 639). A court possesses an inherent power over its own judgments, and can, where justice requires it, vacate a judgment in order to relieve a party from technical difficulty (Per Woodruff, J., in court of appeals in Folger v. Fitzhugh, 41 N. Y., 228, 231).
    II. Even if the judgment had not been opened by previous order, the court should have heard and decided the motion upon the merits (Folger v. Fitzhugh, 41 N. Y., 228; Tucker v. White, 27 How. Pr., 97; Tucker v. White, 28 Id., 78, where all the decisions on the subject to that date are cited and commented upon ; Blydenburg v. Johnson, 9 Abb. Pr. N. S., 459).
    III. Upon the merits the defendant is clearly entitled to a new trial. (1.) The newly discovered evidence is material to the issue—it goes to the merits' of the case, and is not cumulative. (2.) The evidence was not discovered until after the trial. Defendant was not able to discover it before. He used great diligence in obtaining testimony for the trial, and is not guilty of laches (Oakley v. Sears, 1 Robt., 73; Adams v. Bush, 2 Abb. Pr. N. S., 104, 110; Quinn v. Lloyd, 1 Sweeny, 253; Jackson v. Laird, 8 Johns., 489.
    
      John S. Woodward, for plaintiff, respondent.
    I. Motions for a new trial upon a case and exceptions, or upon the ground of surprise, or newly discovered evidence, must be made before, and cannot be made after judgment absolute has been entered (Jackson v. Fassit, 21 How. Pr., 279; J. Clerke, 280; S. C., 33 Barb., 645; Peck v. Hiller, 30 Id., 655; Shelden v. Stryker, 42 Id., 284, 287-8; S. C., 27 How. Pr., 387; Jackson v. Chase, 15 Johns., 354; Anthony v. Smith, 4 Bosw., 503; Barnes v. Roberts, 5 Id., 73, 78, 80; Magnus v. Tritchett, 2 Abb. Pr. N. S., 175; Gurney v. Smithson, 7 Bosw., 400; Anderson v. Dickie, 26 How. 
      Pr., 199; S. C., 17 Abb. Pr., 83; Stilwell v. Staples, 4 Robt, 639).
    II. The defendant has been guilty of great and inexcusable negligence in obtaining his testimony claimed to be newly discovered (4 Graham & W. on New Trials, 462, 472, 483-4; 3 Id., 1026-7; People v. Myers, ,10 How. Pr., 261; Leavy v. Roberts, 8 Abb. Pr., 310; People ex rel. Oelricks v. Superior Court, &c., 10 Wend., 285, 289, 291). Such motions are granted witn reluctance (3 Graham & W., 1083-4-5). The evidence must have been discovered since the trial (Oakley v. Sears, 7 Robt, 112; Dodge v. N. Y. & Washington S. S. Co., 37 How. Pr., 524; S. C., 6 Abb. Pr. N. S., 451; Adams v. Bush, 2 Id., 104; Meyer v. Fiegel, 38 How. Pr., 424; Quinn v. Lloyd, 1 Sweeny, 253).
    III. The newly discovered evidence is wholly immaterial and cumulative (Barrett v. Third-avenue R. R. Co., 1 Sweeny, 568).
    IY. Newly discovered evidence which goes merely to impeach the credit of witnesses examined on the trial is no ground for a new trial. It is not material within the rule (Beach v. Tooker, 10 How. Pr., 297; Meakin v. Anderson, 11 Barb., 216; Powell v. Jones, 42 Id., 24).
    Y. A new trial will not be granted where such evidence merely goes to disprove what was sworn to on the former trial, nor where ic is to a fact controverted on the former trial, nor where it is merely cumulative (Fleming v. Hollenback, 7 Barb., 276; People v. Superior Court, &c., 10 Wend., 285, 291-293; Meakim v. Anderson, 11 Barb., 215, 223-4; Harrington v. Bigelow, 2 Den., 109; Brisbane v. Adams, 1 Sandf., 195-8; Halsey v. Watson, 1 Cainss, 24; Pike v. Evans, 15 Johns., 212, 213; 1 Graham & W. on New Trials, 495-6, 472, 478; 3 Id., 1074, 6, 7, 8; Triplet v. Ehehalt, 5 Robt, 609-10; Sproul v. Resolute Fire Ins. Co., 1 Lans., 71).
    
      VI. A new trial will not be granted in any case on the ground that the verdict is against evidence, when the testimony is conflicting or where there is evidence on both sides,—unless the verdict so strongly preponderates against the evidence as to evince passion, prejudice, &c., on the part of the jury (Murphy v. Boker, 3 Robt., 1; De Fonclear Shottenkirck, 3 Johns., 170; Easten v. Benton, 2 Hill, 576, 578; Keeler y. Fireman’s Ins. Co., of Albany, 3 Id., 251; Fleming v Hollenbeck, 7 Barb., 271; Hall v. Morrison, 3 Bosw., 520; Lewis v. Blake, 10 Id., 198; Arnoux v. Homans, 25 How. Pr., 427 ; Cothan v. Collins, 29 Id., 155).
    VII. The court has no power to extend the time to appeal from a judgment either directly or by setting it aside and directing the entry of a new judgment (Caldwell v. Mayor of Albany, 9 Paige, 572; Monroe v. Widner, ll Id., 529; Wait v. Van Alen, 22 N. Y., 319). And what it cannot do directly it has no power to do by indirection.
   By the Court.—McCunn, J.

This is a motion for a new trial on the ground of newly discovered evidence. The controversy arose about a quantity of tobacco which defendant, on January 7, 1864, levied on as sheriff of the county. - Plaintiff undertook to prove that some few days before the levy by the sheriff, the property had been transferred to him through the assignment of warehouse receipts. The testimony, although very much shaken by a severe cross-examination, was believed at the time by the jury, and they found a verdict for nearly five thousand dollars for plaintiff. Affidavits are now presented to us showing that newly discovered evidence exists, and that that evidence will show this suit to be a conspiracy on the part of the plaintiff and others and that their design was to use this court to enable them to carry out their fraud against the sheriff. I need not say that if such a conspiracy exists or has existed on the part of the plaintiff as is shadowed forth in the affidavits, it is the duty of this court to intercept it at once.

The following principles are settled in regard to granting new trials on the ground of newly discovered evidence. The testimony upon which the motion is based, must have been discovered since the former trial. It mnst be such as could not have been obtained with reasonable care before. It must be material to the issue. It must go to the merits of the case, and not to impeach the character of former witnesses. It must not be cumulative—the facts must be strong, and the party offering them free from laches. The affidavits presented with the case here show that the facts contained therein were discovered since the trial. They show a conspiracy, to enable suit to be brought against the sheriff, and these facts were not discoverd until a quarrel took place after the trial between the plaintiff and the party from whom he claimed title and the the witness on the trial. It (the testimony) could not have been obtained until some of the conspirators disclosed the facts, because it was their secret—known to them alone—and could not be reached by physical industry. It is material, because it (the new evidence) shows that the plaintiff never owned a dollar’s worth of the property sned for, and it does not impeach any of the witnesses, because none of them swore to this conspiracy before. It (the evidence now offered and set up in the affidavits) is not cumulative, for the reason-that no proof of any kind was offered by defendant, going to show this conspiracy. The defendant is free from laches, because he applied to the court the instant the conspiracy was discovered. In fact, the testimony now sought to be introduced is very material and not cumulative. It relates to a point upon which no testimony was given on the trial. It relates to the vital point in the case—“title in plaintiff.” It is true that Eaphaelsky says he bought the property on the fourth, but does not say that the bill of sale and warehousé receipt were signed and indorsed on the fourth. It was the indorsement of the warehouse receipt and the signing of the bill of sale which gave him the title ; and if these were not executed before the attachment by the sheriff, no matter whether dated back or not, his action fails. He says he bought the goods on the fourth. He then had reference, no doubt, to the date of the bill of sale, and the indorsement of the warehouse receipt, which were both ante-dated, and not to the actual time of the transaction. They (the receipt and bill of sale) were dated on the fourth, but the affidavits now presented clearly show that this was a false date, and that the bill of sale and the indorsement on the warehouse receipt, were gotten up after the sheriff’s levy and that they were ante-dated so as to bring the date before the sheriff’s levy under the attachment. The question as to the time when the bill of sale and indorsement of the warehouse receipt were actually signed, never came up on the trial. It was supposed at the time of trial, that they were executed on the fourth. It never entered the minds of any one that this was a conspiracy, and (about the dates of these instruments) that the papers were dated back. It now appears, by the wife of the person whose property the tobacco was, and from other reliable proof, that all the papers were a fraud. We must reasonably conclude that the jury, had they had before them the facts contained in these affidavits, disclosing the newly discovered evidence attached to the case in this cause, their verdict might have been affected by them, and they might have found for the defendant. These facts had not been disclosed at the time of the trial, but were discovered some time after; and as soon as they were discovered, application was made at once. There is, therefore, no laches imputable in not giving them in evidence. If the sheriff’s affidavits be true, he is placed here under great difficulties. When an officer of the law is under real disadvantage and is at a loss how to act, the court must endeavor to help him, as far as possible, away from the difficulties; at the same time, it must see that no wrong is done the other party. In regard to the law governing this case, and first as to the obsolete rules of 1799, denying .new trials after the entry of judgment and without stay for that purpose. .The court in many instances, in construing the rules of 1799, laid them down so rigidly that, in many cases, suitors found unreasonable difficulties in their way—difficulties and inconveniences worse than those which the rules were intended to correct. Indeed, these stern rules (1799) were so far disused and disregarded, and so little put in force down to 1832, that, in many cases, the rule was forgotten, and motions were often made, and granted, for new trials, after judgment, without even a knowledge of the rale being in existence (Roosevelt v. Heirs of Fulton, 7 Cow., 107).

The sound maxim of policy is, that a greater evil should be avoided for a less, and a less good should give way to a greater. The rules of 1799 were harsh and oppressive, and the courts acting under them seldom or never enforced them during a period of thirty-three years. They skillfully or intentionally avoided them, and, after years of experience, finding the rule worked badly, in 1832, the legislature, at the solicitation of the courts, passed an act under which a new practice was inaugurated, and this statute allowed the granting of new trials after judgment, and even after execution was issued and money collected (Laws of 1832, ch. 12, § 1).

It must be borne in mind that no former act had fixed the rules and practice. The rules of 1799, these technical rules I speak of, were simply adopted by the court without the aid of the legislature, and these rules were always relaxed where good faith was shown by the parties. From 1832 until the adoption of the Code in 1848 and 49, an express statute (Session Laws of 1832, ch. 12) and the rules of the court passed in conformity therewith, authorized motions for new trials on newly discovered evidence after judgment. Such motions were constantly made at special term held every three months, and if judgment had been entered and collected, it was set 'aside and restitution ordered. Under the Code of 1848 and ’49, a new system was being inaugurated. It was a mooted point whether new trials could be granted, the doubt being created by the provision of the Code of 1849 (§ 265), as to judgment becoming final after four days ; but even then it was held, that if a formal stay was merely granted within the four days, a motion might be made after judgment (Droz v. Lakey, 2 Sandf., 680).

Under the Code, however, of 1851 and ’52, the four-day provision contained in section 265 of the Code of 1848 and ’49, and the provisions for a stay were dropped entirely ; and as the Code now stands, there is nothing prohibiting such motion, so that the Code is in harmony with the act of 1832, and with the rules and practice established thereunder. I say in harmony with the act of 1832, because section 389 of the Code of 1848 and section 469 of the present Code, provide that the then existing (present) rules and practice of the-court that were consistent with that act “shall continue in force subject to the powers over the same of the respective courts as they now exist,” and as this section of the Code is now in force, it must follow that the practice of allowing motions for new trials after judgment, and without a stay, established by the act of 1832 is in full force and effect, and applies to our present practice, and that the rules of 1799 do not apply. On the. contrary, the rules of-1799 were wholly abrogated by virtue of the act of 1832 ; so that they do not now exist at all. Such was the practice laid down by Mr. Justice Slossox, of this court, in the case of Benedict v. Caffee (3 Duer, 699. That learned judge says: “The entry of judgment does not prejudice the motion for a new trial on the ground of the verdict being against evidence, &c., &c., &c. The terms of this rule (rule 8 of the superior court), plainly imply that such a motion may be made, notwithstanding the entry of judgment. And we find nothing in the provisions of the Code inconsistent with it.” This rule was also established in Maloney v. Dows (18 How. Pr., 27), and in Allego v. Duncan (20 Id., 210). It has been stated in the learned opinion below (on this motion), that the decisions in this court, since the Code, were uniform in not granting motions for a new trial, after judgment. My learned brother must be in error in this regard, because I find (as I have just cited) that Mr. Justice Slossom (3 Duer, 669), in a case immediately in point, holds that the entry of judgment does not prejudice a motion for a new trial. The case in 2 Bandf., 680, in6 fact decides the question in the way I contend, but only in a more indirect form, because there a new trial was ordered, and that after judgment. The cases in 4 Bosw. 503, and 5 Id., 73, and 7 Id., 400, and 26 How. Pr., 199, cited in the learned opinion below, against our views, were decisions made under the impression that the rules of 1799, in the absence of anything to the contrary in the Code, were in full force and effect; and the very learned judges in deciding those cases, unintentionally, no doubt, leaped over the decisions of sixteen years,—decisions made under the acts of Í832 and the rules framed thereunder,—which expressly gave the right to make these motions for leave, at any time, without a stay and without a motion for that purpose, and which act still stands in full force and effect. Nay more, as I have before stated, that act absolutely abrogated the rigid rules of 1799, so that it seems that the learned judges deciding the cases above mentioned, utterly ignored or had forgotten the laws of 1832.

Again, my learned brother, in deciding this motion below, I am afraid, fell into another error, in saying that only one case is to be found in the supreme court exhibiting a contrary doctrine to his views. With the very highest regard for that learned brother’s research and attainments, I beg to be permitted to call attention to two cases in that court,—the cases of Mersereau v. Pearsall, 6 How. Pr., 293; Tucker v. White 27 Id., 97; and see note to same case in 28 How. Pr., 78. In all of them are to be found learned opinions (opinions by the court), indicating and establishing a contrary doctrine. I find also, in the common pleas, Maloney v. Dows (18 How. Pr., 27), a very able opinion of Chief Justice Balt. That learned judge shows conclusively that the practice under the act of 1832 is now in full force and effect. “ Tire Code,” Judge Balt. says, ‘ ‘ has made no material change (from the laws of 1832), as to the course of procedure where the object is to obtain a new trial P But the four cases cited from the supreme court, in the learned opinion below, do not, in my opinion, show that this question has been decided in that court adversely to our views ; because, in three cases out of the four the motions were actually heard and decided, and new trials granted on the merits, notwithstanding the dicta of some of the judges on this question of practice, and the other (15 Johns., 353) was decided under the old rule of 1799, and before the laws of 1832 were passed. And in the case of Gurney y. Smithson, in the supreme court, the reasoning of the learned judge in that court and his decision were entirely based on false premises, having entirely overlooked the fact that the practice under the act of 1832 prevailed for sixteen years, immediately preceding’ the enactment of the Code.

We now come to the most important case yet cited— Folger v. Fitzhugh (41 N. Y., 228),—a decision which we now must follow implicitly. Notwithstanding the construction of our learned brother below to the contrary, Mr. Justice Grover wrote the opinion, holding that a motion could be made for a-new trial after judgment, and four other judges (Mason, Murray, Daniels and Hunt) concurred, and Mr. Justice Woodruee held that the supreme court had inherent power and control over its own judgments, and certainly this view of Mr. Justice Woodruee amounted to the same thing ; it was, in fact, holding that the court could grant new trials after judgment. The other two learned Judges, James and Lott, dissented,—Mr. Justice James writing a short opinion dissenting from the practice of granting new trials after judgment, Mr. Justice Lott saying nothing on this subject,—so that we have six judges holding in that case that the courts below have the power to grant new trials after judgment, and that they have inherent control over their own judgments, and certainly the court can only have inherent control for the purpose of seeing manifest justice done, and correcting errors, and relieving suitors from oppression, wrongs, or mistakes, or misfortunes, where justice requires it, by granting relief in the way of new trials or otherwise, after judgment; and while I must and shall at all times pay the utmost deference to the views of my brethren sitting below, yet I must repeat that the right to grant new trials after judgment, came up in the Folger v. Fitzhugh case, was fully and ably discussed, and that six of the judges held beyond a peradventure, that the court had a right to grant new trials after judgment; and that only one of the judges (James) dissented from that view, Lott being silent on the question; and the dissent of Justice James was placed, as I learn, on mere technical grounds of practice. The learning displayed and the law laid down in this case (Folger v. Fitzhugh) by the court of last resort is the humane, sound and correct rule. It brushes away all technicalities, it settles the question and places, the rights of injured suitors beyond the reach of technical and uncertain minds. The decision in that case (Polger v. Fitzhugh) has made this sound rule definite, certain and notorious, at the same time it avoids delay and saves large expense and time to the parties. All the decisions to the effect that a motion for a new trial cannot be made after judgment and without a stay are based upon the technicalities of the old practice of 1799, and are not in harmony with the spirit of modern jurisprudence. There is no reason in such a rule, and its enforcement would sometimes work great injustice, as the case at bar fully illustrates. The enforcement of such a rule would, practically prevent the granting of new trials on the ground of newly discovered evidence. How can a defendant move for a new trial when he is ignorant of the facts which justify it or render it necessary % Hewly discovered evidence, to be available for such a motion must, of necessity, have been discovered after trial, as in this case. Here the plaintiff based his right to recover on a bill of sale or on the indorsement or transfer of a warehouse receipt from Solomon, dated January 4, 1864, and he, plaintiff, and his witnesses, swore on the trial that the said bill of sale and receipts were executed on the day they bore date, January 4, .1864, and upon the sole strength of such swearing the plaintiff recovered. It is now clearly shown by -proof to my mind reliable, that the witnesses perjured themselves, and that no sale took place until days after the sheriff had attached the tobacco—that the bill of sale and warehouse receipts were both ante-dated so as to make them read ■and take effect before the attachment and levy. How in the name of justice would it be right to deprive the sheriff, a public officer, acting in the line of his duty, of an opportunity to show the truth of the statements contained in Ms affidavits. The order at special term should be reversed. We have not considered the order made by Mr. Justice Spenceb opening the case and allowing the motion for a new trial to be made. That order was disregarded by the learned judge below, on the hearing of this motion for a new trial. V/e think this was correct, because we can only believe that the motion to open the judgment and allow this motion to be made was done in accordance with obsolete techMcalities unnecessary now to be resorted to, and we believe that the discussion of the original motion without the aid of Mr. Justice Spenceb’s order for a new trial, both as to the facts and the law, was properly undertaken by the learned judge who decided the motion on its merits; but we hold that he committed error in denying the motion.

Chief Justice Babboub and Mr. Justice Jones concurred.  