
    WILLIAM SCHULTZ, an Infant, &c., Respondent, v. THE THIRD AVENUE R. R. CO., Appellant.
    
      New trial—newly discovered evidence —surprise —perjury.
    
    A new trial will not be granted for the sole purpose of enabling a party to impeach his opponent’s witnesses.
    A new trial will not be granted unless the newly discovered evidence be so decisive in character that it will be productive, on another trial, of an opposite result.
    Where the newly discovered evidence is met by a prior contradictory affidavit of the proposed witness, a new trial will not be granted. Upon a motion for a new trial, it is no excuse for a failure to call a witness, who was present at the trial, that he stated to counsel that he was unwilling to testify and was ignorant of t:.e matters about which he had previously promised to testify. Such refusal does not constitute surprise.
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided April 4, 1881.
    This is an- appeal from an order denying a motion for a new trial on three grounds, viz.: newly discovered evidence, surprise, and that the verdict was procured by conspiracy.
    This was an action to recover damages for certain injuries alleged to have been sustained by the plaintiff by and through the negligence of the servants of the defendant. It was tried in January, 1880, and resulted in a verdict of $15,000 for the plaintiff ; judgment was entered on this verdict; and from the judgment, and from an order denying a motion for a new trial on the minutes, the defendant- appeals. This appeal was heard at the general term of this court, May, 1880,and the judgment and order were affirmed. The defendant then made this motion for a new trial upon the grounds first above stated. The defendant says that if it be allowed a new trial, it can prove :■
    1st. That the plaintiff, William Schultz (who was a witness on the trial), was arrested for stealing knives on April 7, 1879, but owing to the non-appearance of the complainant was discharged on the day after, and that he and two other boys were arrested on March 18, 1879, for “malicious mischief,” but that judgment was suspended on the 22d of the same month.
    2d.- That James Morton and Francis Riley, two witnesses for the plaintiff on the trial, testified falsely, and that such false testimony was given pursuant to a conspiracy between the. witnesses • and William H. Schultz, the father and guardian of the plaintiff.
    3d. That the witness, Thomas McMenamin, whom they were unable to find at the trial, but whom they have now found, will give testimony contradicting that of William Schultz, James Morton, and Francis Riley.
    4th. That they were surprised by the conduct of Edward Rafferty, whom they had subpoenaed as a witness at the trial, but who at the trial said to one of the counsel for the defendant that he was unwilling to testify, and was ignorant of the matters in controversy, about which he had before told such counsel he could testify.
    
      Lauterbach & Spmgarn, attorneys, and H. Morrison, of counsel, for appellant.
    
      Stilwell & Swain, for respondent.
   By the Court.—Truax, J.

1st and 2d. It is well settled that a new trial will not be granted for the sole purpose of enabling a party to impeach the witness of his opponent (Knoop v. Kammerer, 44 How. 449 ; People ex rel. Stemmler v. McGuire, 2 Hun, 269 ; Woolf v. Jacobs, 34 Super. Ct. 509 ; Chapman v. O’Brien, 39 Id. 244 ; Bunn v. Hoyt, 3 Johns. 255 ; Duryea v. Dennison, 5 Id. 248 ; Fleming v. Hollenbeck, 7 Barb. 271; Sims v. Sims, 12 Hun, 231; Carpenter v. Coe, 67 Barb. 411).

3d. If the counsel for the defendant had used the diligence in looking for the witness, McMenamin, before the trial, that they used in looking for him after the judgment had been affirmed by the general term of this court, they undoubtedly would have found him. But there is another reason besides the defendant’s laches, why the motion for a new trial was rightly denied ; this newly discovered evidence is not so decisive in character that it would certainly be productive on another trial of an opposite result (Darbee v. Fowler, 67 Barb. 359 ; Fowler v. Kelly, 43 Super. Ct. 380).

4th. The excuse offered for not calling the witness Bafferty, who was in court, is not a good one ; besides, Bafferty, if he should testify to what the defendant says he will testify, will be met by his affidavit, which was made shortly after the accident, and which sustains the plaintiff’s version of the accident, and contradicts Bafferty’s new version. McMenamin also made an affidavit, shortly after the accident, which corroborates the plaintiff in all essential particulars (Woolf v. Jacobs, 34 Super. Ct. 509 ; Chapman v. O’Brien, 39 Id. 244).

Hew trials are sometimes granted on the ground of “surprise.” This means that the party asking the new trial was surprised by evidence given by his adversary (Messenger v. Fourth Nat. Bank, 6 Daly, 190). It does not mean that the party or his counsel was surprised or astonished at the refusal of one of his own witnesses to testify as he hoped or expected the-witness would testify.

Order appealed from to be: affirmed, with $10 costs, and disbursements to be taxed.

Sedgwick, Ch. J., concurred.  