
    Henry S. Anderson, Resp’t, v. Edward T. Dickson, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Appeal — Reversal.
    Where the judgment on a former trial was reversed on appeal and a new trial granted, a judgment, on the secend trial, in favor of the same party upon substantially the same facts, will also be reversed upon appeal.
    Appeal from a judgment in favor of plaintiff.
    
      Herbert Green, for app’lt; F. D, Wright, for resp’t.
   Lewis, J.

— This is the second time this case has been before this court upon appeal from a judgment entered upon the report of a referee. We held, in deciding the first appeal, that the referee had erred in his construction of the contract upon which the plaintiff’s cause of action was based, when the contract was read in connection with the evidence on the trial, and we reversed the judgment and granted a new trial. 72 Hun, 556; 55 St. Rep. 233. The case was retried, and before the same referee, and it appears by his second report that he has adherred to his former conclusions. His findings on the second trial are more elaborate than were his first finding, but they were based upon substantially the same evidence. Both parties were present and testified upon the first trial. The defendant is • a resident of* France, and was not present at the second trial, but his testimony given on the first trial was read by stipulation. The plaintiff was called and testified on the last trial, and in relating a conversation he had with the defendant, and which he had assumed to fully state upon the former trial, he added new matter, not before stated. When asked why he had omitted it on the first trial, he replied that he was not then interrogated in reference to ft. He did not claim that it did not occur to his mind. It is upon this new matter that the plaintiff mainly relies to distinguish the case as now presented from the former appeal.

It is apparent from the record that the plaintiff is an intelligent man, of considerable business experience, and that he fully comprehended the questions involved in the litigation, and the effect of the evidence, and it is altogether improbable that the new matter would have been left out by him on the first trial, when he was stating the conversation, if it, in fact, was a part of it. We are satisfied, after an examination of the evidence on this appeal, and a re-examination of the evidence in the former record, that the facts are substantially the same. If there be any material change, it is in favor of the defendant. A number of letters written by the defendant, not read in evidence on the former trial, were in evidence on the second trial. It is quite difficult, if hot impossible, to reconcile their contents with the plaintiff’s alleged cause of action.

We find no reason for changing our conclusions upon the former appeal.

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

Werner, J., concurs, Ward, J., dissents. Bradley, J., not voting.  