
    Andrew Hansen, Respondent, v. Lena Vogelsang, Appellant.
    Second Department,
    July 29, 1910.
    New trial—newly-discovered evidence—breach of warranty on sale of cow — evidence — conversations not in presence of defendant.
    Where the plaintiff suing for the breach of warranty as to the health of a cow-sold to him, falsely testified that he killed the animal by order of the Commissioner of Agriculture because it was afflicted with tuberculosis and the defendant thereafter discovers that no such order was given, he is entitled to a new trial on the grounds of newly-discovered evidence.
    In such action it is error to permit the plaintiS’s witness to testify to a conversa- . tion with the defendant’s husband in which the latter stated that the cow had a bad cough prior to the sale and that the witness gave the defendant’s husband medicine for the animal, where the conversation did not take place in the presence of the defendant and there is no evidence that she knew or was informed of it.
    Appeal by the defendant, Lena Vogelsang, from a judgment of the County Court of ¡Nassau county in favor of the plaintiff, entered in the office of the cleric of said county on the 11th day of ¡November, 1909, upon the verdict of a jury^ also from an order entered in said clerk’s office on the 13th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 8th day of January, 1910, deny^ ing the defendant’s motion for a new trial upon the ground of newly-discovered evidence.
    
      Allen Caruthers, for the appellant.
    
      Henry L. Maxson, for the respondent.
   Rich, J.:

Upon trial of this action in the ¡Nassau County Court, the plaintiff had a verdict (the action being based upon the breach of a war-" .ranty in the sale of a cow) for the full value of the cow, together ■ with fifteen dollars paid to a veterinary surgeon for his services in examining, treating and. killing the animal, and for a post mortem examination. From the judgment accordingly entered, and from an order denying her motion for a new trial the defendant appeals. Later the defendant moved to set the verdict aside and for a new trial upon the ground of surprise and newly-discovered evidence, and from ■ the order denying such motion she perfected a second appeal. The parties have stipulated that the appeals should be heard and decided as one, although' presented by separate records.

The issues of fact were sharply contested, and the conclusion that the cow was sold under a warranty as to her health is supported by the evidence. The plaintiff’s case as to the falsity of the war- ■ ranty rests upon the contention that upon examination of the animal by a veterinary surgeon, about twenty days after her sale and delivery to the plaintiff, he found her suffering from tuberculosis so far advanced that, in his judgment, such condition had existed prior to the sale. Under the objection and exception of the defendant, he was permitted to testify that he'killed the cow by order of the Commissioner of Agriculture. It is conceded that this was untrue. The falsity of that statement was not known to the defendant at the time of the trial, and constitutes the newly-discovered evidence upon which the defendant based her motion for a new trial. A witness called by the plaintiff (De Graff) was permitted, over defendant’s objection and exception, to testify to a conversation had with defendant’s husband, in which the latter stated, sometime prior to the sale, that the cow had an awful cough, and that thé witness gave Mr.-Vogelsang some medicine to use therefor, with directions how to use it, but that he did not dare to use it. This conversation was not in the presence of the defendant, and there is no evidence that she knew or that she was ever informed of it. She testified .that she did not. The testimony of these witnesses referred to was necessarily of considerable weight in determining the crucial question of fact as to whether the cow was unhealthy and unsound when the sale was made and warranty given. With this testimony out' of the case, the jury would have been warranted in finding that the cow was healthy and sound when sold. Its admission was error, and the exceptions to the'ruling and to the refusal of the court to grant a motion for a new trial' based upon the newly-discovered evidence present reversible error.

■ The judgment and orders should be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks and Carr, JJ., concurred; Hirschberg, P. J., concurred in result.

Judgment and order of the County Court of Nassau county reversed and new trial ordered, costs- to abide the event.  