
    JOHN P. GOULD, Plaintiff and Respondent, v. JOHN T. MOORE, Defendant and Appellant.
    Ü. TRIAL, CONDUCT OF.
    1. General objection, what can not be urged under, on APPEAL.
    1. Question stating facts assumed, to have teen proved.
    
    
      (a) A decision overruling a general objection to such a question can not be impugned on appeal on the ground that there was no proof of the facts on which the question was based.
    S. Summing up.
    1. Reference by counsel to matters not proved, or of which THE PROOF WAS EXCLUDED.
    1. It is highl/y improper.
    
    3. It is the duty of the court not to permit it.
    
    3. Error. It is error to permit it after objection made.
    
      But
    
    if, on objection, such reference is immediately rebuked by the court, and not persevered in, it is not cause for reversal, unless it was made in bad faith, and might have prejudiced the defeated party.
    
      II. NEWLY DISCOVERED EVIDENCE, MOTION FOR NEW TRIAL ON THE GROUND OF.
    1. Affidavit of witness who is to give it is beqtjisite.
    
      (a) Death of witness, what necessary in case of.
    
    1. Documentary or other proofs corroborating or establishing what it is alleged could have been shown by him.
    
      (b) Diligence.
    When the evidence claimed to have been newly-discovered is that there was a person who could have testified that he had paid for the services rendered, and the discovery, was claimed to have been first made by such person stating io the counsel of the defeated party, a few days after the trial, that he had made such payment, but it appearing that such person, at the time of the rendition of the services was, and down to, and after the trial (which covered a long period of time), had been on terms of intimacy with the defeated party, and had some connection with the transactions, out of which the claim for services arose.
    Held
    
      that reasonable diUyence had not been shown.
    
    1. That the successful party had frequently told the counsel for the unsuccessful one that such person had never paid him, does not excuse non-enquiry of such person as to the fact.
    Before Curtis and Sedgwiok, JJ.
    
      Decided February 7, 1876.
    Appeal by the defendant from a judgment, and from an order denying a motion for a new trial upon the ground of newly-discovered evidence. The action is brought to recover the value of services alleged to have been performed for defendant in obtaining a compromise of his indebtedness. The defendant denies the employment, extent, and value of the services, and their performance. A verdict was rendered against the defendant for sixteen thousand two hundred dollars.
    It appeared upon the trial that the defendant was one of the late firm of O. W. & J. T. Moore & Co., merchants, of the city of ¡New York, who failed, and made an assignment, on December 4, 1861, at which time their indebtedness amounted to about one million dollars. The partners, excepting the defendant, took proceedings for a discharge under the bankrupt act. Defendant did not.
    In 1868, the plaintiff called upon the defendant, and proffered his services to secure the release of the defendant from his liabilities, which he said could be done for about seventy thousand dollars.
    Soon after, the plaintiff proceeded with his negotiations for a compromise, the claims against defendant at that time being about six hundred and seventy thousand dollars or six hundred and eighty thousand dollars, and the defendant having furnished him with a statement of the same. The defendant claims that this employment was by and on account of Mr. Edwin Hoyt.
    As fast as plaintiff effected compromises, he had the claims assigned to Mr. Hoyt, or in blank, and delivered the assignments to Mr. Hoyt, who, if in blank, inserted his own name as assignee. Mr. Hoyt furnished the money to make the compromises. The plaintiff finally compromised about three hundred and fifty thousand dollars of defendant’s indebtedness.
    In all cases Mr. Hoyt furnished the money, and became substituted as defendant’s creditor.
    It was admitted at the trial that the plaintiff made a great many exertions to effect compromises of defendant’s debts that were unsuccessful. There was-evidence as to the value of the alleged services.
    Miller, Peel & Opdyke, attorneys, and Livingston K. Miller, of counsel for appellant, urged:
    I. Th& motion for a new trial on the ground of newly discovered evidence should have been granted. First.—Facts shown on motion for a new trial: 1. That defendant’s attorneys had been informed by plaintiff, in conversations with him, that Mr. Hoyt had never paid him. This is not denied by plaintiff. 2. That Hoyt had paid the plaintiff in full for the services in this suit, and would so testify. 3. That, at the trial, he (Hoyt) was too sick to be out, and could not attend. 4. Although Mr. Hoyt is dead, the evidence is in his books, and will show that it was he that employed plaintiff to do these services, and paid him for it. Rules of law as to new trial on account of newly-discovered evidence: 1. That evidence has come to party’s knowledge since the trial. 2. That it was not owing to want of diligence that the evidence was not discovered before trial, (a) Hoyt was too sick to be seen or examined. (6) Plaintiff- deceived defendant’s counsel as to the fact, and therefore induced him to disbelieve the fact, which now is found to be true. 3. The new evidence must be material so as to produce a different verdict. 4. It must not be cumulative. This last rule is very strictly applied, “but it has exceptions occasionally.” If it appears that if received, the most obvious justice, and, if rejected, the most obvious injustice, will be done, courts do not hesitate to adopt the former alternative (Graham & Waterman on Dew Trials, 3, p. 1064; Barker v. French, 18 Vt. 460.) 5. The affidavit of the witness must be produced or excused. In this case he was- too sick, and the affidavit of two persons with whom he conversed is given. We submit that on the motion for new trial all the fore going requisites have been complied with.
    II. The motion for new trial upon the judge’s minutes should have been granted, because the verdict is contrary to, and not sustained by the evidence.
    III. There was no evidence on which the jury could fix the valuation of services. The only witness was W. C. Hoyes, and his answer was to a question setting out a set of facts, none of which were proved in the case. Plaintiff, who swears to value, is not shown to be an expert in such matters. The exception to the decision overruling the objection to the questions put to Noyes, is well taken. The case was entirely supposititious.
    IV. The judgment should be reversed, because the plaintiff’s counsel, on the trial of this action, in summing up to the jury, violated well-established principles of law, by referring to matters not in evidence and making them a part of his summing up. There can be no doubt that these matters seriously affected and prejudiced defendant. That it was an unpardonable license, and in violation of the privileges of counsel, will be obvious upon reference to the following authorities: Waterman on New Trials, 685; Legg v. Drake, 1 McCook, 286 ; 1 Ohio S. R. ; Dickerson n. Burke, 25 Geo. 225 ; Tucker v. Heniker, 41 N. H. 317; Vide Muldoon v. State, 11 Geo. 615, 629; Berry v. State, 10 Geo. 522 ; Martin v. Orndorff, 22 Iowa, 504 ; Hoxie v. Home, 33 Conn. 471 ; Cooke v. Ritter, 4 E. D. Smith, 253 ; Crandall v. People, 2 Lansing, 313; Waterman on New Trials, 655, 4 N. H. Rep. 213 ; Koelges n. Guardian Mu. L. I. Co., N. Y. Com. of Appeals, MSS.
    
    
      Nelson Smith, attorney, and of counsel for respondent, urged :
    I. The proof on the part of the plaintiff showed the employment, what the services were, and what they were worth. ,
    II. The exception taken by the defendant (and the only one taken by him) to the decision of the court overruling his objection to the question put to the witness Noyes, was not well taken. 1. The assumptions embraced in the question were fully justified by the testimony, which had been given, and therefore the question was proper. 2. The objection to the question is general. It does not specify any' ground. Had grounds of objection been mentioned, they might have been obviated. It is well settled in such cases, that the party objecting must specify his grounds, or his exception can avail him nothing (Fountain v. Pettee, 38 N. Y. 184-186 ; Malony v. Perkins, 9 Bosw. 576; Doane v. Eddy, 16 Wend. 526; Merritt v. Seaman, 6 Barb. 230).
    III. The remarks attributed to the plaintiff’s counsel in summing up, even conceding them to have been improper, were immediately disapproved and corrected by the court; there is no pretense, therefore, for saying that they could have influenced the jury to the prejudice of the defendant, or that they could have been in any manner adopted either by the court or by the jury. It is only when improper matters are brought into the summing up, and where the court, upon having the point raised, permits them, that objection can be taken upon appeal. Besides, there is no exception, and could not be, as the ruling of the court in relation to them was in favor of the defendant, and any impropriety, if such there was, was corrected at the time, before the case went to the jury.
    Points upon the motion for a new trial upon the ground of newly-discovered evidence.—I. The motion fora new trial, on the ground of newly-discovered evidence, was properly denied (People v. N. Y. Superior Court, 10 Wend. 285; Hollingsworth v. Naper, 3 Cai. 182 ; People v. Mack, 2 Park Cr. R. 673 ; Shumway v. Fowler, 4 Johns. 425 ; Whelrough v. Beers, 2 Hall. 391). (a) In People v. N. Y. Superior Court, Savage, Ch. J., lays down the following principles as well settled, on motion, for a new trial on the ground of newly-discovered evidence. (1) Testimony must have been discovered since the former trial. (2) It must appear that the testimony could not have been obtained with reasonable diligence on the former trial. (3) It must be material to the issue. (4.) It must go to the merits of the case, and not impeach the character of a former witness. (5) It must not be cumulative (10 Wend. 293). We may add three other grounds which in the nature of things partake of the vital elements o: the motion. (1) It must appear that there is newly-discovered evidence, and that must be shown by the affidavit of the witness alleged to be newly-discovered (Shumway v. Fowler, 4 Johns. 425 ; Adams v. Bush, 2 Abb. Pr. N. S. 110; S. C., 1 Abb. Ct. App., Dec. 7). (2) It must appear that the witness can be obtained to testify upon the new trial in case it is ordered. The fact of Mr. Hoyt, the witness here, being dead, is a complete answer to the motion (Shumway v. Fowler, supra). (3) The proposed testimony must be such that the witness, if produced at the new trial, would be compelled to testify upon the subject. If the matter is privileged, or would degrade the witness, so that he would be excused from testifying, it is not ground for granting the motion. So held in Shumway v. Fowler, supra. The motion made here was obnoxious to all of the above objections.
   By the Court.—Curtis, J.

There is no force in the defendant’s objection that the verdict is contrary to the evidence, and not sustained. The plaintiff testified to his employment by the defendant, and that he rendered the services on his behalf, and at his request. Other evidence in the case corroborates the plaintiff’s statement. There was conflicting evidence on the defendant’s part, and these questions of fact were fairly submitted to the jury, who found for the plaintiff. Ho sufficient reason is shown to set aside the verdict as contrary to evidence.

The jury having found for the plaintiff upon the issues of fact, the defendant urges that there was no evidence upon which they could’ determine the value of the plaintiff’s services. The plaintiff was bound to prove the value of his services. The plaintiff testified without objection that he considered the services which he had performed for the defendant, and which he enumerated, were worth from fifteen thousand dollars to twenty thousand dollars. He had previously testified as follows: “I have had other cases besides this to settle, where I have come into contact with others engaged in the same business. My familiarity with others in the same business in the city of New York has continued more or less for three years. I have had other cases to settle for creditors against other parties-—merchants in New York. I have been engaged in the general collection business, and in having suits-brought, &c., in connection with collections.” Another witness testified to having ten or eleven years’ experience in this class of business, and to having a knowledge of the value of such services. In answer to a question enumerating the services which the plaintiff testified he had rendered, and asking him what, in his judgment, the plaintiff would be entitled to for such services, the witness estimated them to be worth twenty thousand dollars. Before answering the question, it was objected to generally by the defendant, no ground of objection being specified, and an exception was taken to the ruling of the court admitting the question.

Upon the argument, it was claimed that this question was based upon a set of facts not in the case, and that the exception was well taken. The exception is untenable for two reasons. The defendant should have stated the ground of his objection to the court, so that his opponent could have had the opportunity very possibly of obviating the objection. It is no part of' the policy of the law that objections for which no reason is assigned, lest they should be obviated, should be sustained (Walsh v. Wash. Ins. Co., 32 N. Y. 440 ; Fountain v. Pettee, 38 N. Y. 186 ; Mallory v. Perkins, 9 Bosw. 577).

Again, upon the ground claimed at the argument, that the question calling out ttm answer was based upon a set of facts not proved at the trial, the exception fails ; for there appears to be nothing stated in the question except what was testified to at the trial. If there was any error, it should have been pointed out, so that it could have been corrected in the question. The plaintiff, by a general objection to a question of this kind, is not obliged to consume time, and protect himself, by reading over all the testimony as to the plaintiff’s services, and then ask the witness his opinion as to what they are worth.

Another ground upon which the defendant seeks-to have the judgment reversed is, because the plaintiff’s counsel, in summing up to the jury, referred to matters which, when offered in evidence, had been excluded by the court.

It is no part of the office of an advocate to seek to influence the verdict of a jury, by presenting to their consideration, in his summing up, matters which have been excluded as evidence by the court. Especially when objected to, it is the duty of the court not to permit it. To allow matters excluded as evidence, to be referred to, or presented, in summing up, so as to affect the deliberations of the jury, or to influence their passions or prejudices, or otherwise to lead them from the line of duty pointed out by their oaths, is at variance with the primary principles of justice. Acts of this kind lead to unjust verdicts, and where they have the sanction* of the judge, call for a reversal of the judgment (Koelges v. Guardian Life Insurance Co., 57 N. Y. 638 ; Crandall v. People, 2 Lans. 312'.

But it must be observed that the present case differs in these respects from those referred to. There is-no exception, and none could be made, as the ruling was in defendant’s favor. Again, in the reference (on two occasions) by defendant’s counsel, in his summing up, to matters which had been excluded when offered in evidence, the case shows that such reference was promptly objected tó, and immediately rebuked by the court, and not persevered in by the defendant’s counsel. Under such circumstances, unless it was apparent that such reference was made in bad faith, and may have prejudiced the objecting party with the jury, a reversal is not called for.

The defendant fails to show that he was, or could have been, prejudiced with the jury, by the reference to these matters by the counsel, nor is it easy to see how he could be ; while there is nothing in the case that establishes that the reference to these matters by the counsel was anything more than a misapprehension as to the evidence. It would, under such circumstances, be unwise and unjust to reverse the judgment for this reason.

The defendant seeks for a new trial on the ground of newly-discovered evidence. It appears that in March, 1874, a few days after the verdict, Mr. Edwin Hoyt stated to the defendant, and to one of his counsel, that he had paid the plaintiff in full for the services. Mr. Hoyt died in May following. Ho affidavit of his is presented, nor are any copies of entries in his books, or of receipts from the plaintiff, or memoranda even, of any kind, presented to confirm Mr. Hoyt’s statement though he referred to his books in his conversation about it. If this had been done, the plaintiff might have had an opportunity of explaining or meeting it.

As it is, the plaintiff denies that he has been paid any compensation by Mr. Hoyt for these services, and does not dispute the affidavit of the defendant’s counsel, that he told him so, and who claims to have been misled by such statement of the plaintiff.

It appears that the relation's between the defendant and Mr. Hoyt were very intimate, and had so continued for many years; that the defendant had proposed to the plaintiff to refer this controversy to Mr. Hoyt, as referee or arbitrator; and that after the trial, Mr. Hoyt was as usual about his business until within a week of his death.

This motion for a new trial was noticed upon affidavits for the first Monday of March, 1874, and some weeks' before Mr. Hoyt’s decease.

Considering the long period that intervened between the rendering of the services and the trial of the action, and the familiar intercourse between the defendant and Mr. Hoyt, it appears extraordinary that the defendant should not have discovered this payment to the plaintiff, if it had really taken place. A very moderate degree of diligence on the defendant’s part would have led to the discovery of it before the trial, or at least have secured Mr. Hoyt’s affidavit and documentary proofs, if any there are, of such payment, for the purposes of the motion for a new trial.

To grant a new trial on the ground of newly-discovered evidence, where there is no affidavit from the witness as to what he will testify to, and in case of his death, where there are no documentary or other proofs offered to corroborate or establish what it is alleged could have been shown by him, would be a departure from well settled rules. Besides this, a party is bound to be reasonably diligent in ascertaining and presenting his evidence at the trial. It would be a dangerous doctrine to allow a party to take his chances at a trial without reasonable nreparation, and then grant him a new trial, because he had through his own neglect omitted to discover and present evidence that lay in easy reach (Oakley v. Sears, 7 Robt. 111: Quinn v. Lloyd, 1 Sweeny, 253 ; Adams v. Bush, 2 Abb. Pr. N. S. 104 ; Shumway v. Fowler, 4 Johns. 425 ; Deom v. Morrill, 1 Hall, 382).

The judgment and order appealed from should be affirmed with costs.

Sedgwick, J., concurred.  