
    SAMUEL K. M. KEPNER, Appellant v. JOHN J. BETZ, Respondent.
    
      Newly discovered evidence.—New trial not granted for when immaterial.— Application of rule.—-Discretion.
    
    This action was brought for an accounting of the affairs of a partnership, alleged by the plaintiff to have existed between him and the defendant. Articles of copartnership were entered in between John J. and John G. Betz, the firm name to be Betz & Co. Plaintiff claimed, that although John G. Betz was named in the articles, yet he only represented the plaintiff, who was, in fact, the partner of John J. On the trial it appeared from the testimony of the plaintiff and witnesses, that by his ' consent the only relation of partnership the defendant entered into, or meant to enter into was with J. G. B., and not with plaintiff; and upon this ground judgment went against plaintiff. On the trial, a 'former book-keeper of Betz & Co. had testified as to the entries in the books of that firm. The newly discovered evidence consisted of the books referred to. Held, that the contents of these books could not disturb the testimony above referred to.
    
      Decided December 1, 1884.
    
      Farther held, that the new trial rests in the sound discretion of the court, and this discretion will not be exercised in favor of a fraudulent moving party.
    So held, when one of the objects of an executory contract, sought to be enforced by the moving party, was to defraud his creditors. This although the enforcement of the contract was not defended on that ground.
    Laches as ground for denying motion, considered by the court.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by plaintiff from an order denying his motion for a new trial.
    The facts sufficiently appear in the opinion.
    
      Clarence W. Francis, attorney, William Fullerton and Hamilton Odell,
    of counsel for appellants, on the points decided, urged. I. The new evidence is material and is not cumulative. Cumulative evidence is additional evidence to support the same points, and of the same character as that already produced (Brisbane v. Adams, 1 Sands. 198 ; People v. Super. Court, 10 Wend. 285). It is additional evidence of the same kind (Fleming v. Hallenback, 7 Barb. 278). It is evidence from the same or a new witness, simply repeating, in substance and effect, or adding to what has before been testified to (Parhsall v. Klinck, 43 Barb. 202). But evidence is not cumulative if it is of a different kind and character from that adduced on the trial (Guyot v. Betts, 4 Wend. 579). Where at the trial the note sued on was supposed to be lost, and proof of its contents was given, and thereafter the note having been found, a new trial was moved for, it was held, that the note itself was not proof of the same character as that offered on the trial. It was of a higher grade and the motion was granted (Platt v. Munroe, 34 Barb. 296). Where evidence on the trial was wholly circumstantial, and the “ newly discovered ” is positive and direct—the latter is not cumulative, although the same fact is sought to be proved by each (Guyot v. Betts, supra.) 
      The case of Hodge v. Denny, (6 Alb. L. J. 192) was one of á lost receipt that had been given for interest on a mortgage. Plaintiff denied having given the receipt. After the trial the defendant found the receipt and moved for a new trial, which motion was denied—but the order was reversed by the general term—the court citing 34 Barb. 291, and Adams v. Bush, (2 Abb. N. S. 106). In May v. Strauss, (2 Abb. N. C. 274) which was an action for rent, the tenant testified that he had paid it by a check. After the trial it was discovered from his bank account and checks that no such check existed. A new trial was granted for newly discovered evidence. (See also Wehrkamp v. Willett, 1 Daly, 4 ; Raphaelsky v. Lynch, 43 How. 157).
    II. The newly discovered evidence must be of such a character that it is fairly probable that it will change the result on a second trial (Fowler v. Kelly, 43 Super. Ct. 380 ; Schultz v. 3d Avenue Co., 47 Ib. 285 ; Starin v. Kelly, 47 Ib. 291 ; Darbee v. Elwood, 67 Barb. 359 ; Adams v. Bush, 2 Abb. N. S. 111).
    This evidence sought to be introduced is of such character. It consists of the original books of this firm, containing the original entries showing conclusively who were the partners who contributed the capital to this firm ; corroborated by similar entries in the ledger of a third party, who sold the original plant and stock in trade to said firm. Also the original. memoranda of the book-keeper of said film, used by him in making up the annual statement of profits to each partner.
    
      Turner, Lee & McClure, attorneys, and Herbert B. Turner,
    
    of counsel for respondent, for the points decided, urged: I. Newly discovered evidence, to justify a new trial, must be of such a nature and so material that it would probably produce a different verdict if a new trial were granted. It must be strong and very important (People v. McGuire, 2 Hun, 260). Such new evidence must not be overborne by the affidavits on the other side as to the material facts of the case (Gautier v. Douglass M'f'g Co., 52 How. Pr. 325 ; Hatfield v. Macy, Id. 193). In other words, the new evidence must, if conceded to be true as claimed, taken in connection with the case, and the affidavits of the other side, warrant, in the opinion of the court, a judgment for the plaintiff. This is by no means the fact in the present case. The verdict on a new trial must be for the defendant. For, even if the plaintiff and his principal witness, Zulick, were credible and trustworthy witnesses, their testimony is wholly overborne by the testimony of the other side. The documentary evidence shows who formed the partnership, but beyond this the evidence of witnesses who knew of the facts is conclusive. John J. Betz, the defendant, John F. Betz, the brother who sold the property to them, Sophia Kepner, formerly the wife of the plaintiff, are clear and positive that there was not, and never could have been any partnership between these parties. But the plaintiff and Zulick are unworthy of belief, according to their own showing.
    II. The motion was properly denied, because of the laches of the plaintiff in not moving promptly. His affidavit was made February 23, 1884. He says that he learned within the last month, which was January, that the books were in existence. He therefore delayed his application nearly two months. There is unnecessary and fatal delay (Woolf v. Jacobs, 45 How. Pr. 403, 407).
    III. The motion was properly denied, because the facts, as stated by the plaintiff, constitute a fraud upon the plaintiff’s creditors. Plaintiff says that this peculiar arrangement was entered into to protect his interest in the business from his creditors. Comstock says the same thing. While a party who places his property in the hands of a third person in order to defraud his creditors may have legal claims against such person, the court will not, in the exercise of its discretion, do anything to extricate him from any trouble into which he may have been led by his own fraudulent acts.
   By the Court.

Sedgwick, Ch. J.

The plaintiff charged in his complaint, that on May 1, 1865, he and the defendant entered into a copartnership to be continued for ten years ; that the ten years had expired ; that there had been no copartnership accounting, and therefore he demanded judgment for such an accounting. The answer denied that there ever was a copartnership. On the trial the plaintiff swore that articles of copartnership had been made between the defendant and himself; that the latter had signed a counterpart, which he, the plaintiff, had deposited in his desk. The articles, according to plaintiff’s testimony, were drawn by Mr. Comstock, the lawyer, engaged for the purpose of drawing whatever papers were made in the transaction. At the same time, according to the affidavit of plaintiff, used upon the motion for a new trial, articles of partnership between the defendant and one John G-. Betz, under the firm name of Betz & Co., were drawn. Both sets contemplated a partnership term of ten years. Contemporaneously were drawn an agreement and a power of attorney, that constituted the plaintiff the general attorney and superintendent of Betz & Co. Both articles of partnership related to the same business, according to plaintiff’s assertion. The plaintiff’s interest, according to him, was represented by John G-. Betz. John G-. Betz appeared as a partner instead of the plaintiff, because it was agreed and understood that plaintiff’s name should not appear as a copartner, for the reason, that a judgment had been recovered against the plaintiff in the stale of Pennsylvania, for a considerable sum of money, which he was unable to pay. He remained as superintendent for about a year, and then left the business entirely, and after that year did no business in the firm or appear at its place of business, excepting occasionally, from time to time, he would go into the office, and be turned out by the defendant. He swore that from May 1, 1865, to May 1, 1866, he did not represent or hold himself out to be a partner to any outside parties. The only representation that he was a partner, were the articíes of copartnership between the defendant and himself, and the opening of the creditors’ ledger, which he testified was entered in the name of himself and the defendant and carried on in that way.” The plaintiff testified that soon after he first left the business, his desk was opened ■without his leave and the articles between himself and the defendant taken therefrom. He called as a witness, the counsel referred to, who testified that he never drew, or were there signed, articles of partnership between plaintiff and defendant, but he did draw the other articles and the agreement referred to, and they were executed. The case generally discloses, that the conduct of the plaintiff for many years was the reverse of that which would be adopted by a man conscious of possessing a right to share in a great amount of profits.

He produced as a witness one Zulich, a former bookkeeper of Betz & Go., who testified that the creditors’ ledger contained a charge which would indicate that the plaintiff had paid one half of the price of certain chattels, which formed a part of the capital of the firm. The witness also testified that there was nothing else in that book to indicate any other partnership in the business.

On the whole case, the learned referee was of the opinion, that it was probably the intention of the parties that the plaintiff should receive from the arrangement that was made some benefit, but not as a partner of the defendant, and that there was no intention, that the defendant should enter into any obligation to the plaintiff. The obligation incurred was performed, if the defendant gave to John 0. Betz his due as a partner; and that whatever interest the plaintiff may have had through John Gr. Betz, must be realized from him. He further said as to the testimony of Zulich : “ The character of this witness, by his own showing, is not the best, and while if the entries were clearly proven, and knowledge of them was brought home to the defendant, they would form an important fink in the plaintiff’s proof, as the evidence upon the subject now stands, without other proof, than that which has been introduced to substantiate the plaintiff’s claim, I do not think it materially strengthens his case.” These remarks show, that the referee was not of the opinion, that if he had thought that Zulich might be behoved, he would have come to any other conclusion than that the remedy the plaintiff might have, if his testimony were true, was against John Gr. Betz and not the plaintiff. The judgment upon the referee’s report was affirmed by a dismissal of an appeal.

The appeal here, is from an order denying plaintiff’s motion for a new trial,' made upon the ground of newly discovered evidence. That evidence is alleged in the plaintiff’s affidavit to be the books, the contents of which Zulich testified to. Such a motion rests in the sound discretion of the court, and is not a matter of absolute right. I am of opinion that the judge properly denied the motion for the following reason: whatever may be those contents, they cannot disturb the testimony of the plaintiff and his witnesses, that by his consent the only relation of partnership which the defendant entered into or was meant to enter into, was with John Gr. Betz and not the plaintiff. These books might tend to show what was intended to be the relation of John Gr. Betz to the plaintiff. This is not the issue. If it were involved, I should be of the opinion that the judge below exercised his discretion properly in refusing to enforce an executory contract in favor of plaintiff, when it appeared that one of the objects of such contract was to defraud his creditor. The defendant does not defend on this ground. But I think it may be regulative of the exercise of discretion. It is proper to keep in mind, however, that the defendant was not called upon to answer as to the nature of the arrangement, if it has been ascertained that no partnership existed between the parties to this action.

Another reason that supports the order is, that the plaintiff was guilty of laches, under the circumstances.

The order should be affirmed with $10 costs.

Van Vorst and Freedman, JJ., concurred.  