
    John Van Tassel, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. New trial—Newly discovered evidence.
    The subsequent discovery of the importance of documents which were in the possession of the party at and prior to the trial does not make such documents newly discovered evidence upon which a new trial should be granted.
    3. Same—Surprise.
    Nor will a new trial be granted on the ground of surprise because of the failure of witnesses to testify as they were expected to, where the party was not misled in relation thereto, and made no motion for a postponement of the trial on that ground.
    Appeal from an order denying defendant’s motion for a new trial on the grounds of surprise and newly discovered evidence.
    Action to recover damages for alleged injuries sustained by plaintiff, a braheman in defendant’s employ, because of the defective condition of a brakestep, the use of which he claimed to be essential to the operation oí the brake attached to one of defendant’s cars.
    
      Artemas B. Smith, for resp’t; Charles Steele, for app’lt.
   Bischoff, J.

The motion for a new trial on the ground of newly discovered evidence and surprise was properly denied, and for tile facts transpiring on the trial reference may be had to the opinion on the appeal from the judgment in this action, which is herewith handed down.

The alleged newly discovered evidence is not such in fact. It consists of the train-book kept by the conductor of the train running from Greycourt to Newburgh on August 22, 1888, the day of the accident of which plaintiff complained; the train-book kept by the conductor of the train leaving Newburgh on the day after the accident with the car, the identity of which with the. car upon which plaintiff claimed to have been injured defendant sought to establish on the trial; the way-bill, and the receipt of the person to whom the carload of sheep was consigned; and it. conclusively appears that these train-books were kept and the other instruments taken by the defendant in the regular course of its business as forwarder of freight and retained in its custody and subject to its control. It appears, therefore, that defendant must of necessity have been aware of the existence of the alleged newly discovered evidence long before the trial, and that it was not introduced on the trial was manifestly due to an impression or belief that it was unnecessary for the purposes of the defense. The subsequent discovery of their importance does not make the train-books and documents newly discovered evidence. Hartman v. The Morning Journal Association, 46 St. Rep., 403 ; Baylies on New Trials and Appeals, 524, and cases cited.

Neither does it appear that the defendant was “ surprised ” entire trial by the failure of the witnesses King and William H.Van Tassel to testify to the identity of the car upon which plaintiff claimed to have been injured with the car “N. Y., P. & 0., 8007,” mentioned in their train report, by any claim or statement on the part of either of the witnesses named that he would be able to swear to such identity. If defendant was “ surprised ” in any sense in respect to the testimony of these two witnesses, it was not because defendant, or its counsel, were misled by any person, but because they assumed that the witnesses knew more than it transpired that they did know.

Besides, it appears, without contradiction, that no application for postponement of the trial was made either on the ground of the inability to produce the documentary evidence, now alleged to be newly discovered, or because of the lack of sufficient preparation by counsel for .the purposes of the defense, or disappointment at the refusal of defendant’s witnesses, King and Wm. H. YanTassel, to testify to the facts necessary to establish the identity of the cars. Hence, defendant must be assumed to have voluntarily proceeded with the trial, and to have consented to the submission of the facts in dispute to the jury on the evidence presented.

Motions of this kind are addressed to the sound discretion of the court, Williams v. Montgomery, 60 N. Y., 648; Lawrence v. Ely, 38 id., 42; Selden v. D. H. Canal Co., 29 id., 634, aud the judge who determined this motion having also presided on the trial, we must assume that he denied the motion upon his knowledge of the facts appearing by the affidavits as well as those transpiring on the trial and are unable to say that the discretion •of the court was not properly exercised.

Order appealed from affirmed, with costs.

Daly, Ch. J., concurs.  